The fact that family law cases must be held in private and cannot, by law, be reported to third parties or in the media, means that, apart from the accumulated knowledge of individual legal practitioners, people rely on anecdote for their information.
Such anecdotes include, in the experience of this reporter, apparent injustices to both husbands and wives. Stories abound of lonely men surviving in grotty bedsits while all their money goes to support children and a former wife, often allegedly in another relationship. Equally, there are stories of women struggling to support children on pitiable maintenance while their former husbands live it up on executive salaries with new partners.
The Courts Service has just announced a pilot scheme that will involve a qualified lawyer (and therefore an officer of the court) sitting in the family law courts and reporting on cases. This person will also compile statistics, which will give some insight into the amounts of maintenance ordered, what happens to family homes and what arrangements are made for children.
While this is to be welcomed, it is unlikely to meet fully the need for transparency and accountability in family law cases. Without that, there can be no informed discussion on what changes, if any, are needed in family law.
Some of the shortcomings in the present system have been identified by my colleague, John Waters. These include the absence of written judgments at Circuit Court level. There are no stenographers in the Circuit Courts, either in family law cases or in other civil cases. The Courts Service does provide them in criminal trials, as transcripts may be necessary in the event of an appeal. In many civil cases, the parties agree to share the costs of a stenographer.
It is common, especially outside Dublin, for an applicant's solicitor to get the orders typed up. It then goes to the registrar for "perfection" on the basis of his or her minutes. The judge will also have notes of the orders made, and if one side or the other is unclear about them, they can, and do, return to court for clarification.
"Sometimes it can be quite difficult because the orders are very complicated," says Dublin solicitor Muriel Walls. "There can be a lot of to-ing and fro-ing. If each court office had secretarial staff, it would be better. Stenographers are hugely expensive. If the judges had access to secretarial services, it could be a halfway house. At the moment, they have no one to type up their judgments."
However, all the anecdote and controversy about family law judgments should not be allowed to obscure the fact that the vast majority of separations end in a settlement which never reaches court at all. "If you can settle a matrimonial case, it will work," says solicitor David Bergin. "If you go to court and a decision is made by a third party, often it doesn't work. Lawyers prefer to settle."
