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Family law courts don’t screw men

Carol Coulter replies to John Waters’s comments in the last issue of Village
Carol Coulter

Men are not on the back foot: Dr Carol Coulter at the launch of her second report on family law in 2007 - with the Chief Justice, John Murray and then Minister for Justice, Michael McDowell
Men are not on the back foot: Dr Carol Coulter at the launch of her second report on family law in 2007 - with the Chief Justice, John Murray and then Minister for Justice, Michael McDowell

It was with some surprise that I read John Waters’ statement in the last issue of Village: “I and others tore Dr Coulter’s report to shreds until nothing of it remained to sense or reason and she ignored any such interventions and proceeded as per orders.” This was a reference to the report I wrote on my year-long project reporting on family law for the Courts Service, later the basis for my book, Family Law in Practice: A Study of Cases in the Circuit Court (Clarus Press, www.claruspress.ie).  Where did this shredding occur? How did I miss it? Was it in John’s weekly column in the paper I work for, The Irish Times? Not that I can find.  Are the “others” referred to reviewers who found fault with the report or the book? On the contrary, the reviews were universally favourable.  So where is the evidence of this “shredding”? Far from that, all evidence is that John did not even read it.  A two-hour trawl of the internet failed to throw up any cogent criticism of what my report and book actually say.  However, there is one clue.  On an RTE programme a few months ago John Waters’s co-thinker, Liam Ó Gogain, of the fathers’ rights group Parental Equality, said on air that my research was discredited because … I had not engaged with Liam Ó Gogain in conducting it!

This, I admit, is true.  When I embarked on the project for the Courts Service in October 2006 a number of groups and individuals contacted me with a view to directing me to their cases or their issues.  Uniformly, I explained to them that I could not accede to such requests as this was a project that had to be conducted on an objective, random basis, so that it was truly representative, not just of the cases where people were unhappy with the outcomes, but of all family law cases.  Most people understood my reasoning, and accepted it.  The methodology on which the project is based is outlined in the report, available on the Courts Service website (www.courts.ie) and in my book, and I will not dwell on it here.  Suffice to say that the work formed the basis for an M Phil degree and as such was endorsed by two leading family law experts, Geoffrey Shannon and Dr Fergus Ryan, and by the two examiners from DIT and NUIG who awarded the degree.  No-one with the slightest credibility in the area has challenged it.

This brings me to the other part of John Waters’s bizarre claim – that I worked “as per orders”.  Whose orders? No-one – not the staff of the Courts Service, not the judiciary, not the legal professions, – had any input whatsoever into the way in which I conducted the work.  I did consult them at the outset, as I needed their cooperation in practical matters like where I would sit and what facilities I needed in court (the Courts Service staff); how the Rules of Court arising from the new legislation would be implemented in announcing my presence (the judiciary); and how litigants would be told of my presence and have it explained that there was nothing they could do about it (the legal profession).  Other than that, I operated totally independently.  I did not give advance notice of my attendance at court cases, except where I needed special facilities, and did not accept direction from anyone as to what courts I should attend.  So what were the “orders” and who did they come from according to John Waters? We are not told.

John also takes issue with my observation, based on an analysis of 10% of all cases concluded in the Circuit Court in 2006 (not the District Court, which hears most family law cases involving domestic violence, custody and access and maintenance) that over 90% of these cases, primarily involving judicial separation and divorce, end in settlement or ‘consent’ orders.  According to Waters such consents are not consents at all, but are extracted from men who fear they will be “defenestrated” (why would they be thrown out the window?) if they go to court.  The problem with this assertion, like all his assertions, is that we simply have no way of knowing why the majority of litigants settle their cases rather than fight them in court, other than an intuitive sense that knowing the outcome of a dispute is better, for most people, than gambling on it.  What we do know is that a 90% settlement rate in Ireland is broadly in line with the settlement rate in all types of litigation (personal injury, disputes about land, etc).

Unfortunately, the impression has been created by media coverage that ‘men will be screwed’ if they go to court in a family law dispute.  What my report did was examine the outcomes of a substantial number of cases, both settled and fought out in court, and show what occurred in relation to issues like the family home, custody of and access to children, maintenance, and other matters.  These outcomes are spelled out in detail in my book.  They do not show that men are invariably ‘screwed’ if they go to court.  If anyone is forcing men to settle when they do not want to, it is those who propagate this myth.  John also states that I introduced a new meaning to the word “custody”, adding “omitting the small print, ‘with daily care and control to the mother’.” This is not true.  Let me refer readers to page 103 of my book, where I refer to “joint custody”.  There I continue: “Joint custody does not, in itself, solve all issues, as ‘primary residence’ or ‘care and control’ also arises.  There is a strong preference among judges for primary care and control to go to the mother, with access to the father.” This issue is then discussed in detail, pointing out, among other things, the correlation between this outcome and the prevalence of part-time work or non-work among the mothers of children of primary school age or younger.  On page 121 I state: “These outcomes … may not necessarily correspond to the best interests and emotional needs of both children and adults post-separation.”

I also pointed out in my report and book that there is a serious inequity experienced by men with children who have limited resources, married to women who work part-time or full-time in the home, stating that family breakdown bears particularly heavily on them.  They are not eligible for legal aid, while their wives generally are.  This leads to an “inequality of arms” in court, with one side legally represented by a lawyer who can couch their requirements in the terms of the relevant legislation, while the unrepresented spouse cannot.  Already struggling with too limited resources to sustain two households, and unable to articulate their needs clearly, such men can often lose out, and I made proposals to remedy this.  This is far from the only criticism I made of flaws in the family law system and my report contained 27 recommendations to improve it.  Some of them related specifically to improving the system for men.  They can be found on www.courts.ie.

This illustrates the difficulty of having a discussion with John Waters – he just will not engage with what people actually say or write.  Indeed, he clearly does not even bother to read it.  Why let the facts get in the way of a good prejudice? This is not the first time that John Waters has attacked me on the basis of an assertion that I said something I did not, in fact, say.  The last time it was to claim I supported a form of child abuse.  It should be a source of concern to those who share his views that he appears unable to conduct the most basic research on which to base his opinions, preferring to attribute to people the views he thinks they should hold, based on his perception on where they stand in his ideological universe.  It is very disappointing that those, like John Waters, who say they are campaigning for men’s rights seem unable to acquaint themselves with THE FACTS and engage with them, preferring to wage ideological wars.