Post Separation/Divorce Quicksand

It is worth remembering that it is very important in quite a few situations to keep your eye on the implementation of the terms of settlement post separation or divorce.  Many people are so glad to put this unhappy period of their lives behind them that they completely forget to monitor the implementation of their settlement agreement or terms of their court order.  Others may think that we, the solicitors, will implement the terms of their settlement, which we do, but only up to a point, usually the immediate aftermath.  Where parts of the agreement or terms do not come up for implementation for several years, we do not generally monitor that going forward.  We will rely on you, the client, to revert back to us when that day comes about where part of your settlement now needs to be implemented.  This will be articulated to you when you are settling your case or discussing the court order outside of court and that will be that. However, because of a recent spate of “aftermath situations” I have written a letter to go to my clients on this matter which hopefully will imprint the need for vigilance on their minds.  Since the last recession, the Banks and financial institutions have tightened their controls and from a global perspective, that is largely desirable.  There are, however, a few perhaps unintended consequences of tightened financial controls.  One of these is the inability of many spouses to obtain loans or have loans transferred to them in their own right.  The Banks generally prefer to have two parties on the hook for the debt rather than one.  It is also quite often the case that despite paying the mortgage for several years single-handedly, you will not qualify to take the loan in your own name due to the level of your earnings etc. This means that if part of your settlement is to have the house transferred to one party subject to the mortgage thereon, the Bank or financial institution’s consent will be sought to such a transfer.  It is important to remember that the Bank is not a party to the proceedings.   The court has no power to make orders against the Bank as such in a family law case.  Many couples knowing that the Bank will not give their consent for various reasons will endeavor to deal with the situation without referring to the Bank at all.  They may enter into a deal with their ex which is that the ex stays in the house and is responsible for the mortgage thereon.  They may be granted an exclusive right of residence in this circumstance or a transfer of interest could be intended and documented.  What, however, happens if the ex does not keep up payments of the mortgage and goes into arrears.  Generally, there is an indemnification clause or liberty to re-enter clause.  The import of these, however, needs to be explained to you by your legal team. The Bank could then move in and seek agreements from both parties about the payment of the mortgage and the arrears.  If you have not been monitoring the payment of the mortgage you might find yourself in for a nasty surprise.  Even though, your ex has agreed to pay the mortgage you cannot afford to not monitor this as you are on the hook for that mortgage along with your ex as far as the Bank is concerned.  The Bank is not bound by the indemnity clause.  You have to think carefully at the time of settlement as to how you will get around this.  One way is to ask the Bank to send you the bank statements to your email address as well as to the family home or to both your email addresses independently.  Most people in this situation will not want the Bank to know that they have separated in case that makes the Bank move in so asking for the statements by both of your emails will raise less suspicion clearly than giving them two addresses.  You can also ring up the Bank as a joint owner and ask for updates but you have to remember to do that regularly. If you do receive information from your ex-spouse that they intend to sell the house because they can no longer afford the mortgage, you are on notice that there is a likely arrears situation no matter what you are told.  If you are told that the ex has come to a deal with the bank and she/he is no longer liable for the full debt having made a deal, be on red alert because making a deal with one spouse does not mean, as far as the Bank is concerned, that the other spouse is off the hook.   You could find yourself liable for all of the shortfall when the mortgage is discharged.  The first thing you should do, if you are told that there is an arrears situation or that the house is being sold, is make it your business to become fully informed.  Do not, as many people seem to do, run away from the situation and pretend it will be alright.  You need to know if your ex has entered into an agreement with the Bank to discharge the arrears and what that deal is.  You may need to amend the terms of your agreement or the Order to reflect this change.  You should almost certainly alert your solicitor to put matters in writing so there is a full record of any new agreement.  You should go back to your family law solicitor as opposed to a new solicitor to deal with this.  Why?  Because it will probably cost you less since your family law solicitor can get up to speed quickly whereas a new solicitor will have to take up your file from the family law solicitor and read their way into it.  Remember that the Bank cannot notify you of anything if they do not have a way of contacting you. They will not go to any trouble to find you.  Correspondence from the Bank will go to the family home where for the purposes of this example, the defaulter is resident.  The Defaulter is unlikely to want to come clean with you because they are likely to be in breach of the court order apart from other issues and will not want to tell you that until it is too late.  It is, therefore, up to you to keep in touch with this situation rather than rely on your ex to give you information that may not be in their best interests but is certainly in yours.  There is another little twist to this kind of situation that few people seem to have on their radar.  The sale of the family home, when you are still on title and on the mortgage, is an event that you should fully participate in i.e., be a party.  That arises because you still are an owner of the house and still on the mortgage.  You should not just sign something and forget about it.  You are not a legal expert, do not sign any legal documents without the benefit of proper legal advice.  If you go to a solicitor who was not involved in your marital or partnership breakdown, and he or she has not got the background to the situation, then they cannot be expected to alert you to all the pitfalls and advise you as to what you need to do.  What is this little twist? It is the Personal Insolvency Agreement.  These seem to have become very fashionable.   The party residing in the family home (A) gets into arrears and you (B) know nothing about this as all correspondence is going to the family home and you(B) are not monitoring it.  The arrears situation gets out of control and A decides to sell and clear as much of the mortgage as they can.  A goes to a PIP (a personal insolvency practitioner) usually on advice from an accountant or solicitor and has the PIP negotiate a deal with the Bank and other creditors.  This is what is then known as a PIA (personal insolvency agreement) which is then brought before a Judge and eventually approved and becomes a legal agreement.   This can all happen without you, B’s, knowledge.  You B, will then be in a very awkward position as the Bank is now going to come after you for any unresolved debt.  You will be surprised at how quickly the Bank will find out an address for you in this situation. Possibly to rub salt in the wound it will come from your ex, A, as they disappear over the brow of the hill into debt-free bliss.  Remember that even without an arrears’ situation, A could decide to sell knowing that the market price will fall short of what she owes.  She could then tell you that the house is being sold and she has entered into a debt forgiveness situation with the bank whereby you, B, infer that you are free and clear under this debt forgiveness situation.  That would be a mistake unless you hear it from the Bank directly preferably in writing or your solicitor does.

In general, the advice is that as soon as you hear anything that makes you feel there are deals afoot about which you have heard nothing officially or you receive any form of official notification, you are told that it is all in hand or that agreements have been entered into and you have nothing to worry about or some other innocent sounding story, you absolutely must contact your solicitor asap and find out what is actually going on.  You could save yourself an awful lot of money. 

Anne O’Neill

Holiday Wishes 2020

 

I would like to wish all my clients, colleagues and professionals a happy, peaceful and jolly holidays. This year has been a tough one and I hope everyone will enjoy the Christmas break as much as I will.

Updates as to my office hours etc will be posted on my business's Facebook and Twitter pages.

Happy Christmas everyone!

Qualities of family lawyer

When you think of a lawyer what springs to mind?  Someone aggressive?  Someone who would argue over “two flies going up a wall”?  Someone with bags of money and a lifestyle to go with it?  Someone capable of great charm when needed but without much sincerity behind it?  Someone who may not tell outright lies but who can put a great spin on things?  All of the above?  So, when you pick a lawyer, how do you make the choice?    

  As a practising lawyer what do I think are the most important qualities of a family law solicitor and who would I look for if I was going through the system? For me the most important quality in a solicitor is honesty.  I am not talking about fiscal rectitude necessarily but of course that too, but someone who will tell you the truth whether you want to hear it or not, someone candid without being brutal.  It does not have to be communicated harshly but you do have to hear it.  The truth about possible outcomes in your case, the truth about costs and the truth about how Judges look at these matters.  If you go into a solicitor’s office and he or she tells you everything you want to hear, run a mile, you are not being told the truth.  What the solicitor is doing is telling you what you want to hear so that you will become a client of their office and by the time you find out that things are not going to turn out this way, it will be too late.  The first thing to understand is that the best interests of the children is the paramount consideration for an Irish Judge.   Secondly, in Ireland the family court judge has to make “proper provision” for both parties.  The best interests of the children may not match exactly with the interests of one or other parent.  For example, the Judge will always want to ensure that the children are housed and this does not always work with one of the parent’s interests.  Where possible the Judge will try and ensure minimal disruption for the children particularly in relation to their schools, however, minimal disruption is not a rule and where it makes sense the Judge will permit property to be sold thereby causing some disruption. Proper provision means providing for both parties from the available resources having regard to the children’s best interests. 

The second quality is an expertise in the field of family law.  Knowing how Judges react to situations and having experience of having run many cases before various courts and Judges is vital in ensuring that you have someone who will help you strategise and navigate your way through the system and who also knows the other practitioners in the field. This quality presents you with an excellent opportunity to settle your case and settling is always in your interests.

A good settlor.   Keeping legal costs to a minimum is a priority for most clients and nothing will contribute more to ensuring that than a solicitor who prioritises settling your case.  A good settlor however, is more than someone who wants to settle, it is also someone who works hard to create conditions conducive to settling.  A good settlor is also someone who doesn’t wait until the last minute to see if a case can be settled.  Settling on the steps of the court will not keep legal costs to a minimum since most of the work is already done. 

Time.  Your solicitor is prepared to give you the time you need, knows who you are when you come in to see him or her and has read your file in preparation for the consultation.  He or she does not take calls when you are with them except in very rare circumstances.  For the most part they take your calls or answer your emails and only occasionally are not available but will get back to you as quickly as possible. 

If you are seeking a mediator, a collaborator or some other form of expertise in Alternative Dispute Resolution, you need to be sure that your solicitor has that expertise and they are specially trained.  In addition to the actual qualification, your solicitor should have experience of working in this area. Do not be afraid to ask the hard questions.  A solicitor without experience or qualifications in the area you seek, is unlikely to encourage you to try this way of resolving your case.  So, knowing what you want and picking the person who meets all of your criteria or most of them is key.    There is no doubt that mediation and collaboration are the most cost-effective ways of resolving your matrimonial or relationship disputes and so do not be put off.  Of course, remember that it takes two to collaborate or wish to mediate and your solicitor does not have control of that. 

Your solicitor should be someone who is recommended to you and who is highly thought of in their field.  They should be informative so that when you leave their office, you feel your questions were answered and you know more than when you came in.  For the most part they should be kind and patient with you and where some impatience comes into the picture it should be the exception rather than the rule.

While you did not need your solicitor to be your buddy, it helps if you and they share an approach to the issues of your case.  Studying their website may give you a good indication of the values of your solicitor and their approach to things.   

People often think that having a solicitor close to where they live is a must.  Provided you can make the odd appointment it is not as important as it might seem.  Technology allows for interconnectness as we are all finding out now in this time of Covid 19.  It is also a mistake to think that aggressiveness is an essential quality in a solicitor.  In fact the last thing you want is an aggressive solicitor since he or she is likely to ratchet up costs.  What you want from a solicitor is assertiveness, good communication skills and friendliness. 

Parental Alienation

There is no doubt that children can become alienated from a parent post-divorce or separation and that this happens regularly.  The reasons, however, are often a lot more complicated than the explanation most frequently given ie that one parent is manipulating the child against the other parent.  This characterisation sets up innocence and guilt as the parties at the table and makes the prize the child.  That is not the way Judges do business and it does not benefit the child one iota.  A rigorous process of enquiry based on extensive knowledge and training has to be undertaken in each case.  Just as there is no doubt that a parent can manipulate a child deliberately or not, intentionally or unintentionally, there is also no doubt that accusations of parental alienation can be made to silence a parent who might expose abuse in the relationship or to silence a parent who it is anticipated could do this. Such accusations can also be made with varying degrees of seriousness to change the narrative.  It is exceedingly important, therefore, not to rush to judgement as a professional or a parent so as to right a perceived wrong by making things worse.  We should not allow or prejudices and fears as a parent lead us into unconscious bias.  For this reason, I believe that early intervention, extensive education, and rigorous investigation are the keys to proper management of this situation.  There are no easy fixes nor should there be, these matters are complicated.

Accordingly, this paper is not presented as a piece of academic research nor do I pretend that it is.  I write my blog which you can find on the website as means of opening discussion on issues of the day.  Such pieces are usually related to my work and they are written with ordinary people in mind, the kind of people I see every day in my family law practise. 

Parental Alienation is a hot topic.  Many believe it does not exist.  Some seek statutory provisions which would effectively make it a criminal offence.  There are also differences of opinion as to how this behaviour should be addressed and by whom.  Equally, there are those who passionately argue that it is a major issue which needs to be addressed now.  I come across something resembling parental alienation almost every week in my practice.  It presents with varying degrees of seriousness.  In some cases, the alienation is almost total and has been going on systematically for years. In others, the parties are not separated very long and the non-residential parent suspects that the children are being slowly turned against him/her generally manifesting in a cut back of the access time without explanation. The non-residential parent is advised that the children have activities scheduled on his or her access days or that they are sick a lot. Sometimes the residential parent advises that the children have expressed a definite view that they do not want to go on access and the parent residing in the house is unwilling to make them  In any event, one definition of parental alienation is that “parental alienation takes place when a child sides with one parent and rejects the other parent without justification and despite a previously loving relationship”.  Another definition is “Parental alienation is a deliberate attempt by one parent to distance his/her children from the other parent.” There are important components parts to these definitions, and they need to be each examined carefully.  Parental Alienation can happen to either parent.  It is not just something which men experience though in my legal practice it seems to be mostly men who believe that they are experiencing this.  The second thing to note about the definition is that parental alienation only exists if it occurs without justification.  In the second definition, it is characterised as a deliberate attempt i.e., not something which occurs without the parent being aware they are doing it.  I think when you insert the word deliberate it becomes clear that this is something rare and not something common. In the context of marital breakdown, it is my experience that the hurt experienced and, depending on the surrounding circumstances, the disappearance of trust can cause the hurt and mistrustful parent to react negatively to access.  This happens when a residential parent fails to distinguish between their own feelings of betrayal and those of a child/children.  Occasionally, the rejection of a parent by a child is a logical move on the part of the child.   It may be a reaction to emotional or physical abuse of themselves or the parent which the child witnessed or knew about.  Accordingly, the child takes a stand against the abusing parent. The child appears to side with one parent but in essence, they are rejecting the behaviour of the other parent. In each case, the historical context of the alleged alienation must be examined as a first step. If a child is really manipulated by a parent they will likely reject extended family and friends of the rejected parent A child may not have been abused but might have witnessed abuse.  Occasionally, an abused parent may have managed to keep the reality of their abuse from the child, however, the abused parent may have rational fears for the children when alone with the abusing parent. Accordingly, the starting point must always be to ask if the child has a valid reason or reasons for rejecting a parent such as abuse or neglect. Sometimes abusers don’t recognize their behaviour as abuse and often even when they are aware refuse to acknowledge the behaviour as abusive and seek to blame others and in this case that will be the other parent. Sometimes accusations of parental alienation can be used to protect abusing parents.  Finally, the phrase “despite a previously loving relationship” is a key component of the definition.    If a parent has been away for long periods during a child’s life or spent very little time with the child even while the marriage was ongoing, then it is unlikely that the child/children will want to exercise a great deal of access with that parent. However, the favoured parent can exploit this or can encourage the child to perceive it in a more forgiving light. It is very rare for a child who had a previously loving relationship with a parent to cease all contact with that parent.  Once the evidence points to a previously loving relationship, then we are probably looking at a parental alienation case. 

Studies have shown that adult children who endured parental alienation suffer from low self-esteem, self-hatred, abandonment issues, lack of trust, depression and are more likely to have substance abuse or addictions. It, therefore, behoves us to treat it with a great deal of seriousness and to educate ourselves about the concept of parental alienation. While family law practitioners in Ireland are familiar with the term, the law does not recognize it, despite the fact that the World Health Organisation did classify this briefly and ceased early this year, ie 2020.. As well as the term parental alienation, which was coined over 30 years ago, the term parental estrangement is also useful and it can be used to describe the earlier stages of difficulties in child contact before it becomes a case of alienation but where the effects are the beginning for the non-residential parent are similar to those affected by parental alienation. At this early stage, it is important to retain any and all contact no matter how spurned you feel by the other parent and or the child.  No matter how small take whatever whenever.   Unfortunately, it is a term also used to describe teenage children’s difficulties with their parents so it needs to be used and defined precisely. Quite often, well-meaning parents, whose primary trust relationship with their life partner has broken down, cannot differentiate between their own sense of betrayal and mistrust and the entirely different feelings a child or children might have.  In time, when the edge has gone off things, parents usually come to see clearly those emotional distinctions between themselves and their children.  As a result, the situation naturally calms down but sometimes things do not calm down and such people need assistance.   The assistance at an early stage needs to come in the form of ADR (alternative dispute resolution) early in the separation process and it should involve some of the myriad forms of mediation and counselling which include co-mediation, one mediator, managed negotiations and collaboration as well as serious programs for change and education.  In my view, co-mediation and collaboration would be best suited for these type of cases as both parties need to be held and teamwork will achieve that best.  The worst thing that can happen at the estrangement point, would be lengthy delays in our ability to provide solutions during which time the children gradually become more estranged leading inevitably to alienation from the non-residential parent.  It is for this reason that awaiting a child psychologist’s family report and recommendations as often happen in a court situation,  where there have been initial delays in getting to see the family psychologist and then further delays while the process is ongoing and awaiting the report, may not lead to a successful outcome.  By the time all that has taken place, the damage may already have been done between the period of time that elapsed before the agreement to appoint the child psychologist is put into place and the period that elapses during the process.  Time periods of 9 months or a year can be very long in a child’s life. Time is of the essence.  All the experts seem to stress this over and over.  Please note that it is also clear that manipulative alienation can occur much faster than most people realize  If one parent is withholding access from the other, then that situation will likely remain in place until the report is done and that in itself creates estrangement.  If, for example, a residential parent is alleging that the non-residential parent is a neglectful or irresponsible parent and even an abuser, the courts will be slow to award access pending the report.  While the court system, which is exceptionally prone to delay, backlogs and build-ups may not be the ideal place for this type of examination, a recognition of the concept by the court and how it might play out in family disputes is vital as this would lead to an early intervention to prevent long term effects for children.  

Loyalty conflicts can arise in the aftermath of separations because the parties are experiencing a maelstrom of emotions and their tension and unhappiness is frequently communicated to their children even small children eg body language, poor reaction to schedule alteration etc., talking unhappily on the phone to friends or family or when they call.  Allowing and even encouraging careless or abusive talk about the other parent by friends and family who will naturally take sides.  If children develop headaches, stomach aches, tension, lack of energy, and other physical symptoms leading to anxiety and depression as well as disobedience and social withdrawal it is likely that the child/children are caught up in a loyalty conflict and this can very quickly become alienation if not dealt with quickly.  It is very important to remember that children can sometimes decide to favour one parent because of a perception that the parent has been wronged or that the parent is the more vulnerable, the one hurt etc.  It is also important to understand that children can exaggerate one cause over another for the breakdown.  A child may be willing to denigrate a parent whose love is easily granted in exchange for conditional acceptance from a parent who was previously uninvolved or harshly punitive and rejecting.  Equally a child may feel obliged to show loyalty to an emotionally fragile parent.  Parent-child relationships are particularly vulnerable when the children are first informed of the breakdown or when one parent leaves home and these situations require careful management.  Remember that a close relationship with your child/ren in the course of a marriage is no guarantee as to how things will work post-separation.

 

When a marriage breaks down it is seldom that there is not hurt, anger, sadness, jealousy, fear, loneliness and occasionally a sense of injury.  Having an understanding of these emotions and their impact on both parents and the possible consequence is key to avoiding many of the pitfalls that arise post-separation.  Feeling that you are the favoured parent helps to reduce those awful feelings of jealousy, anger etc. 

Jealousy – your ex may be jealous of your new relationship.  She or He may have a sense that the new partner will replace them in the eyes of the children.  She or he may also be jealous of the other parent’s relationship with the children.  She or He may feel it reflects poorly on them and seek to reassure themselves.  Friends and family taking sides can aggravate these feeling of insecurity.  The parent may be jealous of the time one parent gets to spend with the children over them.  The transition to only seeing the children on designated parenting days is enormous.  There may be also jealousy around money – ie one parent has more than another and therefore, able to lavish gifts and treats on the children.   You cannot assume that parents will be able to see jealousy for what it is and know how to move to assuage those feelings or reassure the parent – they need to be told about them and they need to work through them with exercises etc to become aware and then they need to look at what they may be contributing to the situation and how to manage the situation.  This applies both ways ie to both parents.  To some extent at this early stage, it does not matter whether the behaviour is intentional or unintentional as the advice on how to handle it will likely be the same, ie the good advice.  Later on, when the situation is more entrenched that advice might be different for various reasons.

Let's look at Fear.  Fear is all pervasive in a separation situation.  One parent fears the loss of their children, the loss of time with the children, the loss of money to educate them and the loss of their love.  They have fears of losing control and of their future.  Without professional intervention, these fears can just get worse over time not better.  It is unnerving to feel that you have lost control.  A parent caught up in this is unlikely to be a present parent.  That parent will then experience guilt at not being present and in turn, may look to assuage those feeling by seeking reassurance from the child.  Separation also aggravates the difference in parenting styles between the parents.  I have written about this on the blog before.  Those differences can be exaggerated and lead to more fear for the absent child if on contact.  Loss of control can evolve into an irrational fear that the other parent will harm the child and that you need to rescue the child. 

Guilt washes over everyone in separation. Guilt that the marriage failed, guilt that the children will suffer as well as guilt that you won’t be able to cope.  Such feelings can lead to a need to be the favoured parent. 

There are also feelings of shame, anger, sadness and loneliness which is quite the cocktail of emotions.  There isn’t  time here to go into these in any kind of detail but they are there in almost all cases no matter how they show up in conversations or body language and being aware of them whichever parent you are is a very important part of preventing them  getting out of control. 

For example, introducing the children to your new partner at a very early stage and without discussion may make you feel good but will cause negative feelings of jealousy, anger and hurt in your ex.  Managing that introduction in a more sensitive way with the help of a professional might calm those emotions.  Telling the children your version of the breakup without the other partner may allow you to tell your side of the story first but it does not and will not help the children who need to be reassured that both parents love them and that they are not somehow the cause of the breakup. Lavish spending on the children when they are with you may make you feel better but is unlikely to inspire generous feelings in your ex and more importantly is probably not good for the children or their perception of you.    Realising the corrosive effects of fear and loneliness is very important.  When the children go on visits to the non-residential parent seeing photos of the other parent in the new home is very reassuring both to them and to the absent parent should he or she hear if it and they probably will.  Talking respectfully to the other parent in front of the children can be reassuring that you are not badmouthing them when they are absent.  Allowing the children to make phone calls to the absent parent ….all these things can help.    And finally providing within your means financially for each other and the children can greatly calm financial fears and anxieties. 

The emotion which is most likely to lead to an alienated child is Narcissistic Injury.  If your ex’s ego is bruised as a result of the divorce because you moved on he or she may come to view you as worthless because that is what they tell themselves to feel better about what happened.  She or he may express thoughts like “No idea what I ever saw in him/her”.  These may be heard by a child.  It is only a short step to he or she has no redeeming qualities therefore they must be a terrible parent and it is accordingly difficult to see why a child would want contact or should have contact.  It is, however, important to know that this can be professionally helped if caught early and that many people have these feelings in the first few years but recover. 

 

What should happen when a person is found to be engaged in parental alienation?  The answer to that may well partially lie with at what stage the behaviour is characterised and categorised.  If it is still early days, the damage to the child/children may still be capable of being reversed.  At this point also, the child may not suffer undue effects from a little coercion to repair the relationship with the estranged parent.  We have to be very careful to ensure that a child, through no fault of its own, is not put in a position and certainly not accidentally, where he or she is effectively being punished in their own mind by having time taken away from one parent and given to another.  It is for this reason, that changing custody of children arising out of withholding of access, by a court, may well turn out to be unintentionally punishing the child as a consequence of punishing the estranging parent. I am drawing a distinction, however, between the manner in which we address estrangement and the manner we should address parental alienation. 

 

It is widely suspected that people who engage in parental alienation, i.e., deliberately and systematically destroying a previously loving relationship between a parent and child, are people with personality disorders.  Not everyone with a personality disorder becomes a high conflict personality.  Cases of parental alienation are characterised by a high level of conflict. A personality disorder combined with being What Bill Eddy calls ………..(ie someone who points the finger of blame for all their woes on others.  a persuasive blamer seems to be a key ingredient to becoming a High Conflict personality which in turn is essential for parental alienation to occur.  

 

When high conflict personalities are in dispute, there is, as far as they are concerned, nothing to discuss or negotiate.   High Conflict Personalities will seek representatives who specialise in blame style litigation.  People with personality disorders have enduring patterns of behaviour. It takes strong consequences to change them.  Well-intentioned lectures and routine negative feedback about their dysfunctional actions will have no effect on their behaviour. Consequences need to be logical and directly connected to solving the problem.  If the problem is chronically abusive behaviour, part of the consequence should be a requirement to change that behaviour as well as further consequences if the abusive behaviour happens again.   

If the problem is related to misperceptions and false allegations then psychological treatment and legal /or financial consequences should arise. An assessment will need to be made, no matter how carefully the situation is managed, as to whether the enduring pattern of behaviour is inherent in the alienating parent’s personality making it impossible to alter. 

If that is so, then the only logical response may be moving the child/children into the custody or care of the non-residential parent. This may have the unintended consequence initially of seeming to punish the child but research shows that this unintended consequence quickly rights itself. High Conflict personalities need strong and structured consequences.  A program of change is necessary.  Orders without consequences will have no value whatsoever.

One of the problems in our system is the lack of consequences arising out of a breach of orders or disruptable behaviour, particularly when the issue is children rather than finance.  For a long time, the courts had no power to order the parties to engage in treatment programmes.   Rather than punishment and blame, the focus should be on treatment programmes if there is substance abuse, Domestic Violence programs, parenting classes and individual counselling and on alternative dispute resolution all carefully managed by the court. 

This is where Section 60 of the Family Relationships Act may come into its own because not only can the court order treatment programmes it can also order costs against a party where behaviour warrants it. 

One of the problems in the Irish Family Law System is the apparent lack of consequences for breaches of orders, particularly in the area of children.  However, you should note that Section 60 of the Family Relationships Act 2015 amends the Guardianship of Infants Act 1964 by the addition of Sections 18A 18B 18C and 18D.  Section 18A allows for an Enforcement Order to be made where an access/custody order is in place and a parent is unreasonably denied such custody or access by another guardian or parent of the child.  The granting of an Enforcement Order is subject to the party who is denied being “unreasonably” denied access or custody.  The court must also have regard to the best interests of the child and whether or not given surrounding circumstances such an order is appropriate.  If an Enforcement Order is made the court can extend the terms of the original court order to provide additional access to make up for time lost or as the “court may consider necessary in order to allow any adverse effects on the relationship between the applicant and the child caused by the denial referred to in Subsection (1) to be addressed”.  The amendment also provides that the Respondent may be ordered to reimburse the Applicant for any necessary expense actually incurred by The applicant in attempting to exercise her or her rights.  The newly inserted sections also make interesting insertions for the court to order the attendance for counselling either individual or family, parenting course and recommendations in relation to mediation.  In layperson’s terms this means that if you are a person who has an order giving you access for example, and you have tried every reasonable means to secure that access as granted by the order.  If, despite your reasonable efforts,  you are thwarted and denied at every hands’ turn, you can now apply under the Guardianship of Infants Act 1964 as amended by S 60 of the Family Relationships Act 2015 to the District or Circuit Court seeking an Enforcement Order.  The court can also order in a specific way how the time is to be made up to you that you have lost and further award you the costs or expenses of having to make such an application.  Of course, the court is not going to just grant you an Enforcement Order.  In each case, the Court has to be satisfied that the denial of access was unreasonable and that it is in the best interests of the child to make the Enforcement Order with the extra provisions which might be sought as outlined above.  The beauty of this Section is that it allows an applicant to apply for enforcement rather than just breach and it allows for this application to be made in The district as well as other courts.  While the legislation does not mention the word ‘sanctions’ it provides for the court to at least consider an application for costs and furthermore, provides a provision to redress the balance and allow for extra time to make up or as the court orders.   It is a welcome advance on the previous situation.

 

Anne O’Neill – Principal of Anne O’Neill Solicitors

 

Child abuse allegation

There is no doubt that our increased focus on children, their needs, rights and our duties toward them are a positive development. It is a long way from the position we tended to have less than 50 years ago where we felt matters concerning children were private and best kept to the family.  We need, however, to be careful that we are not just paying lip service and there is very little real back up to our intentions, good though they may be.  We continue to place a heavy responsibility on organisations such as Tusla but we do not increase their funding to allow them to adequately deal with their new responsibilities and to secure the necessary retraining.   Nonetheless, we continue to have high expectations of what they can deliver.  We are also inclined, it seems to me, to implement reforms but not to examine in any depth the pros and cons of such reforms and their implementation.  In other words, we like to feel good about ourselves and once done we seldom want to hear or deal with the problems and are aghast when predictably things go wrong.  In my lifetime, I have seen this played out several times.

It is increasingly obvious that one of the downsides of our current approach to the welfare of children is the fall out from falsely levelled complaints to the child authorities.  Unfortunately, we only have anecdotal evidence to fall back on regarding this, however, every solicitor working in the area of family law can tell some tale about the disastrous impact of false allegations of child abuse. I have dealt with foster parents falsely accused whose livelihood was disastrously impacted as a result not to mention their reputation and standing.  Ireland is a small country and this type of scandal does not remain under wraps for long.  I have also dealt with family law cases which are held in camera (i.e., in private) and where such accusations were either levelled or implied in the course of the proceedings.   The outcome from such accusations is likely to be an impaired relationship for one parent with his/her children.  I don’t think it is unduly sexist, simply realistic, to say it is usually “he” in these situations.   It is an easy accusation to make and the stench it leaves sticks to the accused long after the authorities have parked the case.

One of the biggest difficulties for a parent accused of child abuse is that there is little he can do to defend himself as the first reaction of all concerned will be to remove him from contact with the alleged victim.  Of course, this is entirely understandable, but it does mean that the parent is, in fact, proving his innocence from a guilty position rather than the reverse.  One of the things that are often said is that whatever we have to do to protect children in these circumstances is ok but is that true if in protecting children we make it easier to make false accusations in situations where there is an advantage in doing so.  False claims of child abuse sway custody proceedings and affect relationships.  It is noticed and remarked on by practitioners how false allegations often correspond with visitation and custody disputes.  It has also been said that as family law becomes less contentious and more orientated towards peaceful resolutions, a bitter or angry party can resort to extreme behaviour to make themselves feel better and one such type of behaviour might be to level a false accusation.  I do not know if this is necessarily true, but we need to examine it.  Perhaps there is some need for the catharsis of a good old purge.  When a spouse is bitter and angry about the breakup and perceives that the other spouse has behaved badly and is getting away with it, they can find the reality that bad spousal behaviour has little impact on separations and divorce outcomes, very hard to take.  I think that people who are locked in a conflict situation with someone they formally loved can begin to see that former loved one through a distorted lens. Litigation in and of itself can provoke anger and the need for revenge.  I often hear that one party finds the other unrecognizable since the break-up was announced.  The hurt and confusion of a breakdown combined with the feeling that the other party is unrecognizable can and does give rise to a breakdown in trust and can then evolve into full-on paranoia.  Of course, some people make the accusation knowingly and do so to get rid of the other party entirely from their lives or to punish them for what they have done.  And then there are these others that I feel exist who are not directly culpable but rather delusional but delusional or not the consequences for the accused parent are such that we cannot just pass over this.

And so, what do we do about it?  We cannot let people be falsely accused, their lives blighted with no redress.   It’s astonishing how quiet the world is about this but then when you consider the opprobrium in which child abusers are held, it is perfectly understandable why those accused falsely would not mount campaigns around this. People love the saying “there is no smoke without fire”!  This issue is receiving little attention in Ireland but has come in for a lot of professional attention in the USA.  We need to consider sanctions to deter the perceived advantages of making a false allegation without preventing legitimate complaints being made.  That is not an easy balance but we cannot simply wash our hands of it as if false accusations were just collateral damage.  The wrongly accused person may be subject to exclusion by friends and family because of the allegation.  Employment and future career prospects may be impacted.  Allegations can send detrimental thoughts into the minds of children causing permanent damage to a child’s relationship with the accused.  Because of the need to protect the child as soon as an accusation is made, access will at the very least be supervised and the effect of this on a child will likely be to leave him or her with the impression that they are not safe with the accused parent.  False accusations make it harder for real victims and false accusations are never in a child’s interest, on the contrary, they are directed against the best interests of the child.

It is not beyond legal minds to define frivolous or vexatious complaints giving rise to a false accusation of child abuse in depth.  Such a definition would embrace the circumstances surrounding the frivolous or vexatious conduct so that good faith allegation would not be caught in the net.  If parents make allegations of child sexual abuse or other types of serious abuse when they are in fear of losing custody, time or control of their children to another qualified parent then the existence of severe penalties were they found to have done so knowingly would act as a deterrent.

In Family Law, the Judge is primarily charged with adjudicating the case with any dependent child’s best interests to the fore.  False allegations need to be reviewed under the principle of the recognition of the best interest of the child.  We should empower the court to sanction if it becomes clear in the course of a hearing and under the legal definitions that a false accusation has been made.  Those sanctions should reflect the seriousness of the matter as outlined above and need to send a very strong message.  The aim of the law should be to protect both the wrongly accused parent and the best interests of the child involved.

Spousal Support/Maintenance/Alimony.

One of the most controversial areas of family law is the issue of whether or not post-separation/divorce an ex-spouse who had been dependent or semi dependent should continue to be financially supported and if so to what extent, for a number of years or indefinitely, to a previous financial standard or close to it or to some other to be determined standard of a lesser nature. These topics are hotly debated by lawyers with each other and in front of Judges. Even in the case of spouses who both work it can arise if there is a big disparity in income. Not too surprisingly, the prospect of having to support an ex indefinitely, and sometimes even for a short period, is one that exercises the mind of the possible supporter to an excessive degree and can colour what might otherwise have been a fairly measured approach to the division of assets. Ex-spouses or partners in this position will wonder if continuing to work to the same exhausting degree as previously, is now worth it? 

Lawyers faced with this issue will often stress the difficulties for women in returning to work after a prolonged absence, loss of confidence in their abilities to navigate the workplace or in the value of their contribution, need to retrain, lack of technological know how etc. On the other side some lawyers will argue that a willingness to at least try and return to work would go a long way. Still others will suggest a retraining period or even a return part time plus some retraining and the remainder will just argue that a return to work is on the cards. 

As a long time, feminist, I tend to feel some sympathy with male resentment. I sometimes think that self-respect should determine a willingness to return to some form of paid employment. Many of the women involved are well-qualified and could at least try. Are these women lazy? Are they used to a particular lifestyle now? Are they unwilling to change?  Surely if you had spent a good deal of time, energy, money and graft in qualifying and climbing up a career ladder – you would want to get back to it asap? 

Before trying to answer these questions, I want to contextualize this debate. Very often in the course of a marriage, couples have divided up tasks in a way that makes financial and practical sense for their home lives. If one party earns more or has more career potential, then it can be practical or make financial sense for the other to downsize their own ambitions and focus their energy on family. The intention can often be that when the kids reach a certain age, the partner who back-seated his or her career at the altar of family life will return to work or College or will, at that time, be afforded an opportunity to focus on his/her own specific career opportunities. In reality, the partner who most often makes this sacrifice is female but that may change going forward. Sometimes, however, that conversation does not actually take place, it is more a silent understanding. Quite often, such understandings are often imagined as shared but are not shared at all and that discovery is only made when the marriage/partnership is in difficulties. This can lead to added layers of disappointment and anger. Even when the conversation is heard and remembered, there may have been life changes which would make such a well-intentioned agreement impossible e.g. marital breakdown, drop in salary, change of work location, sickness etc. If the relationship breaks down it is quite often the case that even if there was a will, there are insufficient funds to run two households and provide extra money for College or to remain at home and very often the parties are facing not only the ruins of their relationship but also the ruins of a lifestyle plan such as a return to College.  Looked at in a different way, it is worth remembering that men are very often enabled to shoot up their career ladder because women are prepared to take a back seat on their own career. It is also true however, that men can often work at unpalatable or dangerous jobs to ensure good pay because they are supporting families. A man’s ability to change careers is curtailed by his responsibilities or to take less paid work which might be more conducive to him. What is important here is that we do not make too many generalizations and that we see everything in its context.

In my experience, most women are prepared to contemplate a return to work but are hugely lacking in confidence that they can earn enough money or that anyone will want to employ them now. There are a few who genuinely have no intention of returning to work or who are ill and cannot contemplate return. Most women, who appear not to want to consider a return, are afraid that they will wind up with insufficient money post separation/divorce. Therefore in negotiations or in court, they present themselves as unwilling, incapable or unable to return to work so as to maximize the spousal financial support they might get. Lawyers are often hostage to their own prejudices in this situation. Their attitudes can be guessed at depending age and gender. Male lawyers will seldom encourage women, in a divorce case, to return to work. This may be a straight forward strategy based on the reality that a female client looking for support will get less if they are working and able to contribute something themselves.  While female lawyers are often caught in this trap too, they are likely to be working mothers themselves and aware of the issues involved and therefore, better able to have a conversation about a return to work. They are more likely to offer direct encouragement. Male lawyers often find it hard to position themselves in such a way with female clients to have such a conversation without coming across as badgering. Unfortunately, the Judiciary is not clear on this matter and while one Judge might take a strong view and raise the issue in court, another will not raise it. 

I take a view that with few exceptions, age or sickness, being most of them, that a separated woman is often better off returning to work as a part of her recovery from the marital breakdown and to give her a sense of financial independence. That said, everyone needs to fully appreciate the logistical difficulties of such a return. Quite often retraining is necessary or a phased return depending on the type of job and ongoing family responsibilities. Equally, a woman who was in a high- powered job or a job with considerable status in her 20s and is now 40 is not going to return at the same level or indeed any level and that may be humiliating for her. Accordingly, she may wish to pursue another career or different kind of work. Sometimes, the experience of being a stay at home Mum may have fundamentally affected her approach to life, values etc. and she may wish to pitch herself differently in the work force.

All of the above difficulties are conundrums that need to be discussed. In short, they are conversation pieces. Nothing will be resolved satisfactorily by either side making the other feel bad about life choices that worked for them as a couple and are now unsustainable.  Equally nothing will be served by either of them being led by well-meaning family, friends or professional people into bitterness. The end result of bitterness in the legal world is money and money will never compensate for lost dreams and hopes even if that were allowed by our system, which it is not. Ireland has a no-fault divorce system. The language of compensation is not appropriate in family law. If a party gave up a career to raise children or took less promotional opportunities because of family commitments, there will be no compensation for such sacrifice in a family court. However, the court will take some account of it when dividing the assets but only to the extent that money is there. All that will happen in family court is a careful balancing of the finances of you as a couple and as you currently stand financially and a division accordingly.

However, a back story, a look forwarded to where the parties might wish to get to in their future separateness can lead to conversations. Conversations can let light in and show ways forward to mutual benefit. Not always, because sometimes there just isn’t enough money no matter which way you spin things, but the conversation can break down bitterness and barriers which in turn leads to better parenting or communication. It is not much of a conversation when a person is being cross-examined in court or where negotiation is being conducted with each party closeted in their own area so that the people actually talking are the representatives and not the parties. Mediation, collaboration in all their myriad forms are the way forward in all family law dilemmas.   

Happy Christmas :)