Simon Collins

Simon Collins is the Herald’s social issues reporter.

When love breaks down

Photo / Getty Images
Photo / Getty Images

It has all the hallmarks of an acrimonious divorce battle.

For women's advocates, a proposed family law reform is a giant "retrograde step" that will expose abused women and children to danger. For men's groups, it's a small step in the right direction.

Emotions are running high on both sides in the political war over the Family Court Proceedings Reform Bill, now with a parliamentary committee.

But society can't just leave the warring parties to fight this one out. Everyone has a stake in the central issue of how to prioritise the safety and wellbeing of children, while being fair to both parents.

Pain on both sides

Almost by definition, every Family Court case is painful. It's bad enough when any relationship breaks up, but 90 per cent of separating couples can at least talk to each other enough to sort out who looks after the children and who gets what property, either between themselves or with the help of a lawyer or counsellor.

For most of the 10 per cent of couples who end up in court, love has turned into searing hate and fear. A review of care of children cases found 72 per cent alleged physical, sexual or psychological abuse and 51 per cent alleged mental health or addiction issues.

Under provisions dating back to 1995, after Wanganui father Alan Bristol killed his three children and himself in a bitter marriage dispute, judges cannot give an allegedly violent parent unsupervised contact with the children unless they are satisfied the children will be safe.

They have to consider the nature and seriousness of the violence, how often and how recently the violence occurred, the likelihood of further violence, the physical or emotional harm to the children, whether the other parent and the children themselves consider that the children would be safe with the allegedly violent parent, and any steps taken by the violent parent to prevent further violence occurring.

Therapeutic court

The Family Court was set up in 1981 as a "therapeutic" court to minimise the pain. Judges, lawyers and counsellors are all required to explore the possibility of saving a relationship, and then to try to resolve the issues around its breakup.

Anyone applying for a separation order must be referred to counselling for up to six free sessions unless factors such as violence are involved.

If counselling fails to resolve all the issues, either party can apply for mediation with a judge, and only if that fails does the case go to a formal court hearing.

Once a parenting case gets to court, the "welfare and best interests of the child must be the first and paramount consideration". Judges are guided by six principles including the primary responsibility of both parents for the child, stable childcare arrangements and relationships with wider family, and the child's safety.

In practice, most applications for parenting orders are made by mothers (53 per cent) or grandparents and other relatives (18 per cent), with only 29 per cent from fathers.

Most orders for children's day-to-day care are also made in favour of mothers (59 per cent) or grandparents and other relatives (17 per cent), although orders in favour of fathers (13 per cent) or for shared care by both parents (11 per cent) are increasing slowly.

Cost-driven reform

Former Justice Minister Simon Power announced a review of the Family Court two years ago, a week after unveiling legal aid cuts and new user charges including a $220 fee to apply for a parenting order which came in last July. The paper he took to Cabinet said: "The most important issue facing the Family Court is its sustainability. Government expenditure related to Family Court proceedings has increased at a significantly higher rate than the overall number of substantive new applications."

Court costs rose 63 per cent in the five years to 2010. The cost of lawyers for children rose by 56 per cent. Legal aid costs leapt by 93 per cent, mainly due to a 2006 change allowing legal aid regardless of the prospects of success if a child was involved.

The bill finally brought to Parliament last November by Power's successor, Judith Collins, would completely rewrite the system.

The Family Court's therapeutic role would disappear. The bill repeals the clauses requiring judges, lawyers and counsellors to seek reconciliation first, and then to resolve issues by agreement. Judge-led mediation would go, and so would free counselling, unless a judge orders it.

"Judges' expertise is in adjudicating disputes. Emphasising the Court's therapeutic function has led to more complex and confusing processes that contribute to delay," Collins told her Cabinet colleagues.

Anyone seeking a parenting order would have to first pay for private mediation with an approved family dispute resolution provider, unless violence or other special factors are involved.

The bill does not spell out what mediators should do.

The explanatory note says: "What the services are will depend on what the private client is able and willing to pay for."

There is no limit on the mediator's fee unless one of the parties qualifies for legal aid. In that case the Government would pay a fixed fee of $448.50 for each party qualifying for legal aid (up to $897 in total).

Collins also plans to change the Family Court Rules to introduce a questionnaire form of affidavit, designed to keep out irrelevant vitriol, and to ask judges to assign each case to one of three tracks:

• A fast track for cases involving violence, with lawyers from the start.

• A simple track for minor contact issues such as disputes about who has the child for holidays. Lawyers would be banned and a lawyer for the child is "unlikely to be appointed".

• A standard track for all other cases, with an initial settlement hearing without lawyers and then, if necessary, a full defended hearing.

Lawyers and legal aid would be allowed only for the final hearing, and a lawyer for the child "may be appointed after the defence is filed if there are serious issues".

Family Court judges and lawyers have universally condemned the limits on lawyers and Collins conceded at Easter that there would be "more involvement by lawyers than indicated". That will reduce the savings, originally put at $15 million a year.

Shifting the balance

The bill also makes other changes that shift the delicate balance between mothers and fathers in childcare disputes. It extends the definition of domestic violence to include "economic abuse (for example denying or limiting access to financial resources or preventing or restricting employment opportunities or access to education)" - a clause counting against some fathers.

It would require judges in parenting cases to consider the conduct of any parent who "unnecessarily delays" the process or is "obstructive" towards the other parent having a role with the children - which may count against some mothers.

Most importantly, the bill repeals the "Bristol clauses", which ban unsupervised contact with an allegedly violent parent until a judge has investigated.

Advisers said the clauses sometimes separate children from their fathers because of mere "historic and minor abuses", sometimes for months until a judge is available.

To replace them, the bill changes the order of the six principles for parenting orders, putting the one about children's safety first.

A written paper supplied by Collins says she is also considering other options, including a Law Society suggestion to reinsert the list of issues about the nature of the violence involved.

Parliament's justice and electoral committee is due to report back with an amended bill by June 4.

A father's view

Fathers' groups have long argued that the Family Court has what Kerry Bevin of the Fathers' Coalition calls "a persecutory bias in policy and law that is anti-male".

Bevin advocates following a 2006 Australian law which created a "presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child" unless there are countervailing factors.

Hans Laven, a Tauranga clinical psychologist and self-styled "Ministry of Men's Affairs" spokesman, supports Collins' proposals to require mediation first in parenting cases, to penalise parents who obstruct the other parent's role in childcare, and to scrap the Bristol clauses.

"The current legislation requires the court to treat anyone accused as guilty until they can prove themselves innocent. It's a fundamental abandonment of important principles of justice," he says.

But he says the bill doesn't go far enough towards challenging the view that domestic violence stems from a cultural assumption that men should have "power and control" over women. "In my experience of working with people, this patriarchal power and control idea may have some validity in a very small proportion of cases of domestic violence, maybe 5 per cent," he says.

He believes a better explanation in the other 95 per cent of cases is that violence is part of mutual emotional conflict.

"A very typical situation is that one partner will jump up and down demanding more love and attention," he says.

"The more they jump up and down, the more the other one withdraws and feels misunderstood, and that is a vicious cycle.

"You start with not blaming either party, they are both stuck in a situation of emotional reaction to each other.

"You look at a recent argument that escalated into a worse argument and someone storming off and slamming doors. You go through that and keep explaining how they are feeling, look at the communication, make sure they understand their own feelings."

Ideally, he would replace the Family Court with panels of experts in relationships and child development, with a legal presumption of equal shared care by both parents unless there are strong reasons against it.

Laven, whose own relationship broke up eight years ago when his children were aged 11 and 7, urges MPs to keep free counselling. "The existing free counselling has assisted many parents to stay together and to keep their children's family unit intact."

Children at risk

Women's groups such as Women's Refuge also want to keep free counselling - but warn that neither counselling nor mediation are appropriate when violence is involved, and that scrapping the Bristol clauses could force children into risky contact with a violent parent.

University of Auckland sociologist Vivienne Elizabeth, psychologist Nicola Gavey and law lecturer Julia Tolmie have interviewed 21 separated mothers and say many felt their children were pushed into unsafe contact with their dads.

In one extreme case, a father hit his preschool child, giving him a bruise that took 28 days to heal.

At other times he tied his son's shoelaces so tight that his toes went blue, tied his pants so tight that the boy had red welts on his tummy, and turned up drunk to collect him.

Some children were upset when their fathers verbally abused their mothers during changeovers.

Other dads were just poor parents. One mother said the dad lost his son in public places several times, locked him in a car while he shopped, sent him back to mum without cleaning urine and faeces from his body, and took the boy's bedding for himself on a cold night, forcing his son to get up and dress himself.

Elizabeth, Gavey and Tolmie argue that childcare decisions when couples split should start from how much childcare each parent did when they were together, rather than from an idealised assumption of equality.

Statistics NZ's time-use survey shows that, in most couples, mothers still spend much more time with the children than fathers do.

Even on weekdays with primary-school-aged children and both parents working full-time, mothers do more than twice as much sole-charge childcare (44 per cent) than fathers (20 per cent), while the two parents share the other 36 per cent of childcare time.

"Marriage has a history," Elizabeth says.

"That history doesn't suddenly disappear. If we go back to this notion of men as breadwinners, the history still informs how people do relationships. Ironically, at the point that the relationship between the parents has broken down, we are insisting that parenting ... be shared."

Tolmie says the Bristol clauses rightly put the onus of proof on an allegedly violent parent to prove the children are safe with them. Reverting to just a list of principles shifts the onus of proof on to those who would stop a child spending time with one parent.

More guidance

University of Otago law dean Mark Henaghan, the lead author of Butterworths Family Law in New Zealand, says the bill needs more guidelines both on how the proposed mediation will work and on criteria to guide childcare decisions.

He says New Zealand's current system is seen globally as "exemplary" and it would be a mistake to scrap key elements such as free counselling and judge-led mediation, early appointment of lawyers for children, and the Bristol tests for child safety.

"To take it all out means we are going to be back to the days when violence was not taken seriously," he says.

He believes counselling and mediation should remain publicly funded.

"Once you farm them out to a private thing outside the court, the danger is that it becomes a business," he says. "Some people will be put off. You don't want people put off by a cost barrier."

He says the bill is too flexible by keeping just a list of general principles and leaving it to judges to weigh them up.

"Ultimate flexibility means ultimate variability," he says. "We are making it so broad that people are trying to litigate to see what's going to happen. There is a movement internationally to move towards guidelines because the cost is getting too much. We call it the rule of law - people should know what they are getting."

- NZ Herald

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