Simon Collins

Simon Collins is the Herald’s social issues reporter.

Sword hangs over counselling

Chris Hardy had two free court-funded sessions to try to save his marriage.
Picture /Greg Bowker
Chris Hardy had two free court-funded sessions to try to save his marriage. Picture /Greg Bowker

After 11 years of marriage, Chris Hardy was in shock when his wife told him 2 years ago that their relationship was over.

"She announced one night that she didn't love me any more and wanted a separation," he says.

The Manurewa couple had two children - a son who is now 11 and a daughter who will be 9 in a few days.

Mr Hardy, now 44, had been the children's primary caregiver, while his wife worked, since soon after their daughter was born. He had not expected the split.

"The person who leaves decides they left a long time ago, and the other person is in complete shock and surprise, didn't see it coming," he says.

The couple sought help voluntarily from the Family Court which provides six free counselling sessions to any couple who ask. The counsellor saw each partner separately first and then together.

It helped Mr Hardy to cope with the shock. "The counselling makes such a big difference," he says.

It did not save his marriage. They struggled on for nine months, then separated. They agreed on sharing care of the children without using lawyers. But a year later, they both wanted to change their arrangements and could not agree. The counsellor again saw them separately and then together for six free sessions and helped them to agree on revised arrangements.

"It went from an impossible no-win situation to being good for both sides," Mr Hardy says. "Without those free counselling sessions, I hate to think what would have happened. It would have gone through lawyers."

The Family Court, unusually in our justice system, was set up in 1981 with what a royal commission at the time defined as "a two-fold function - judicial and therapeutic".

Over the past 31 years it has developed a series of steps all aimed at resolving family conflicts by agreement rather than judicial dictate. Feuding couples are first offered counselling, then an educational programme about parenting through separation, then often lawyer-led mediation, usually with a court-funded "lawyer for child" who interviews the children and helps the parents to focus on what is best for their offspring.

But the court now faces its biggest challenge. A review ordered by Simon Power when Justice Minister last year found its costs increased by 63 per cent in the five years to 2010. A consultation paper said the system was "not financially sustainable".

Mr Power's successor, Judith Collins, will take final reform proposals to the Cabinet this month. The consultation paper suggested narrowing the court's focus to what it saw as the state's proper role - protecting children and vulnerable adults. It questioned whether the state should try to keep marriages together.

"There is also a duty under the Family Proceedings Act for judges, lawyers and counsellors to promote reconciliation for separating couples and, if that is not possible, conciliation," it said. "The question was raised whether the Family Court should continue to be involved in promoting reconciliation, or whether it is more appropriate for the state to focus on conciliation and assisting families to resolve their disputes."

In practice, this may mean dropping the free counselling service and expanding mediation. In Australia, the federal Government funds 65 "family relationship centres" which primarily provide mediation to help separating couples resolve disputes.

A West Auckland father-of-two who used Family Court counselling when his marriage broke up after 21 years says it worked for him and his wife.

"Obviously we were still pretty upset - raw nerves and all that," he says. "How do you mediate if you are in the middle of something very emotional and you are not thinking straight? If you are going to do mediation, you have to be a certain way down the path in terms of healing."

A mother-of-two, also in West Auckland, says her husband can afford a lawyer but she can't, and counselling gives them a more even power balance than a mediation with lawyers.

"Lawyers are $300 an hour, I would need another $10,000, I don't have that," she says. "The counselling is the only chance of a balanced outcome."

A survey by the Association of Counsellors found that 53 per cent of 1500 couples who sought court-funded counselling voluntarily, and 31 per cent of 300 couples who were directed into counselling by the court, "presented with the issue of possible separation but were helped to instead resolve their relationship issues and subsequently stayed together as a couple/family".

Mary Gray of Auckland's Home and Family Counselling says saving a marriage should always be explored because of the impact of separation on children.

"We are talking about the upbringing of the nation's children. That is at the heart of the Family Court in terms of why the courts are involved in this at all, so to suggest that the law is not interested in couples staying together is absurd," she says. "Mediators are not going to go down that track because it is not their role."

However, counselling does not always work. A Sandringham mother says her former partner has used the system to harass her by seeking constant changes in access to their son for years after their separation, which she has fought at every stage because the boy feels unsafe with his father.

A Whangarei father-of-four found counselling "a complete waste of time" because the court directed the counsellor to sort out only "pick-up and drop-off times" and not what he saw as abuse of a child by his ex.

A younger Onehunga father with a 2-year-old daughter also saw no point in counselling because he was determined that his relationship was over. In his case, lawyer-led mediation resolved the couple's dispute over care of their children, although it cost the father $10,000 in legal fees.

The Law Society's family law section recommends that the court should stop funding voluntary counselling, saving $9 million a year which could be diverted to mediation.

"The emphasis on reconciliation to be found in sections 8, 11(2) and 1 2(a) of the Family Proceedings Act 1980 is not helpful and should be removed," it says.

"Counselling is not a panacea and, unless focused and purposeful, is an unnecessary extra step and a significant public expense."

Court costs

* NZ's 51 Family Court judges head the country's second-busiest courts.

* Court applications have been steady at about 65,000 a year.

* Requests for counselling rose from 12,100 to 14,900 in the five years to 2010.

* The court's total costs rose by 63 per cent in the same period to $137 million.

- NZ Herald

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