International Family Law

Month on month we are experiencing an increase in queries concerning the taking of children from this Jurisdiction illegally. As a result Family Law is becoming more global and international. It is now very important when dealing with Child Abduction cases and related access and custody issues to have knowledge of the relevant rules in other Jurisdictions. We are currently dealing with Hague Convention proceedings throughout Europe, the US and Australia. 

We have also gained much experience in the provision of legal advice to international families who travel, live and have connections in different parts of the world. In dealing with international Family Law situations our focus is always on keeping families out of Court and on reaching fair and reasonable settlements that allow families to get on with living life. Working with lawyers in other jurisdictions is key to getting the best results for our clients. 

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Maintenance of Children

The issue of Maintenance in my experience always seems to cause conflict between parents. Unfortunately the dispute between the parents can result in one party not happy paying a certain amount for Maintenance and the other party not happy receiving what is offered. Understandably the issue of money can be a sore point when couples separate. This is especially the case where one party earns a considerable amount of money and seems unwilling to pay enough to support his/her children.

All parents have a duty to maintain their children and rearing a child is expensive. If at all possible parents should try to discuss how each parent can share in providing financially for the child. Sometimes a voluntarily arrangement/ agreement can work but more often than not where there is a dispute a Court ruling will be required.  It is important to note that paying maintenance in itself does not give a parent access or guardianship rights. However in my experience in dealing with Guardianship and Access a Court will seek information on the issue of Maintenance.

Voluntary agreements can work very well where both parents are reasonable eventhough it can be difficult to assess how much Maintenance should be paid. If a payment cannot be agreed in this way the parties may need to employ Solicitors and make a Court application.

In taking a Maintenance application through the Courts the following points should be noted:

  • Maintenance cases are always held in private
  • The maximum District Court can order is €150 per week per child.
  • In the Circuit and High Court there is no limit
  • Both parties will be asked to provide details of all cost and expenses, vouched
  • Once ordered Maintenance can be paid through the District Court or into a nominated bank Account
  • A parent may also seek contributions towards annual health or educational costs also
  • Once ordered by the Court there can be serious consequences for non payment
  • A Court can also be asked to attach a Maintenance order to the earnings of a parent

Over the years I have acted for parents who don’t want to pay maintenance as they feel the money is not being spent on the kids expenses. It is hard for parents to separate the dispute and the needs of the children financially but it is very important to keep the interests of the child at heart if possible.

In all cases I would advise clients to try and park the conflict for once and agree a reasonable figure for maintenance thus avoiding Court proceedings and all the stress and worry that comes with that.

Maurice O’Connor

The View of the Child in Relocation Cases

CB v CB (Abduction: Child’s Objections) [2013] EWHC 2092 (Fam)

The British father and Australian mother married in England where their son, now 14, was born. They separated when he was 3. For the next 8 years the boy and his mother lived in this country with the boy keeping in touch with his father. The mother and the boy then went to Australia for a trip, intended to last for a year, with the consent of the father; he agreed to a further year’s extension. During that time the father maintained contact by visiting Australia and on two occasions the mother brought the boy to England. On the second of those occasions the father promised he would return the boy in time for his return flight in January 2013 but failed to do so. He claimed that the boy did not wish to return to Australia with his mother. The Cafcass officer considered that the boy was mature, saw his home as England and had formed the considered and deliberate view that he did not wish to return; the mother considered that he was a vulnerable child and had been manipulated by the father. The mother returned alone to Australia and launched the present proceedings under the Hague Convention on the Civil Aspects of International Child Abduction 1980.

Held – dismissing the mother’s application; directing that the parents agree the future contact arrangements –

(1) Under Art 12 of the Convention the boy had been wrongfully retained in England; he was habitually resident in Australia and his mother was exercising rights of custody in respect of him. However, although the basis for his objections to returning may or may not have been right his views were rational and amounted to an objection within the meaning of the exception in Art 13 of the Convention. In light of his age and maturity they should be taken into account.

(2) In considering the boy’s welfare, the court would exercise its discretion not to return him to Australia and any further questions about his welfare would be decided by the present court.

This case is interesting from the point of view of the child who had clearly expressed an honest wish to stay in one country. The most important thing here is that the views of child were his own and once this was accepted by the Court it was hard for the judge not to consider his opinion. In considering the view of a child in Hague Convention proceedings the age and maturity of the child will be very important. A child may not be able to grasp all the issues but once that child is given a rationale opinion it is likely that any Court will have to take this into consideration.

Separation Agreements, the basics.

A couple whose marriage has broken down should always be advised of the advantages of agreeing to a separation agreement to work out an acceptable agreement concerning the children, maintenance and property. Of course these types of agreements are not for everyone and both parties must be willing to compromise on some matters. However if the parties agree to separate the details can be worked out through mediation or through Solicitors and a Deed of Separation can be drawn up and if accepted by both parties, signed and witnessed. The outcome is a legal contract between the parties.
When children are involved it is always important to explore the possibility of a Deed of Separation as the parties have the chance to avoid the stress and expense of going to Court. im my experience the thought of going to Court to deal with the breakdown of your marriage is s harrowing thought. Separation agreements can avoid this.
A Separation Agreement will have a number of clauses and is a legal written contract between a husband and a wife setting out their future rights and duties. The agreement can deal with the following issues and can give clarity to people separating:
• Maintenance
• Contributions to school expenses/medical bills etc
• Access including weekend access and holidays
• Division/sale of family home
• Non-molestation clause ( restraining one party from bothering another)
• Spouses inheritance rights
The above are some of the main issues that can be included in a Separation Agreement. It is important to note the issue of pensions is something that would have to be dealt with at a later date if the parties were getting a Judicial Separation or a Divorce.
A Deed of Separation can be a very useful option as it regulates matters for a couple whose marriage has broken down until such time as they decide to Divorce at a later stage.
It is however very important that each party is represented independently in order that the interests of husband and wife are protected.