In a Herald investigation into the effects on children caught up in Family Court battles, Jane Phare looks at what’s underway to improve the court system, and what parents say needs to happen.
There are few winners in the Family Court, particularly in bitter, drawn-out disputes over children. Parents and caregivers fight over the one thing they love most in the world, a fight that leaves them feeling powerless, and angered by slow court processes and frustrating procedures. Some end up loathing each other. Witnessing this storm of emotion are their children - at home, behind closed doors, in the car, on the phone. There are no secrets.
Tracy,* who faced a nightmare scenario three years ago when she lost regular contact with her children after her former husband filed “without notice” protection and parenting orders, says she believes the Family Court system needs to be “completely dismantled”. She didn’t see her children for a month initially, and then only for very limited supervised access for more than a year before 50/50 shared care was re-established.
“Whoever gets in first with whatever allegation wins. You feel like a criminal.”
Tracy’s views are echoed by others spoken to by the Herald. It would be easy to write off these warring parents, consumed by the court battlefield. They see themselves as victims, and in a way they are. They are the end result of an adversarial Family Court system that doesn’t serve anyone particularly well and probably never has. Successive Ministers of Justices have tried, without success, to fix a system described by those who have suffered at its hands as “brutal,” and “frightening”.
The country’s latest Justice Minister, Ginny Andersen, is no exception. She says it is “always heartbreaking” to hear of any additional harm caused by the Family Court, and is committed to ensuring the Government learns from mistakes of the past. Addressing the systemic issues within the family justice system has been a priority for the past six years, she says, but the work is “nowhere near done”. Ongoing work to transform the system will take between five and 10 years.
‘Caught in a deadly game of chess’
Problems plaguing the Family Court, and by association the Minister of Justice, aren’t new. Back in 2006, the then principal Family Court judge Peter Boshier denounced the traditional model for resolving disputes - filing affidavits, and requesting psychologist and social worker reports - saying that the resulting “slagging match” of allegations made it difficult for agreements to be reached. Cases took too long to get to court, he said, and parents were often caught in “a deadly game of chess where the rules meant that no one would win and the clear losers are the children”. Cases dragged on indefinitely, and animosity between parents obscured what was in the children’s best interests. Roll forward 17 years and not much has changed.
At the time, Judge Bouchier triumphantly announced a less adversarial process called the Parent Hearings Programme whereby parents would be able to talk directly to the judge, and the same judge would preside over the entire process. Costs and delays would be reduced; battlelines would be replaced with dialogue. Here, at last, was someone who understood the issues; here was hope for improvement. The programme ran as a two-year trial in six New Zealand regions, but was later deemed as “not ideal” by Judge Boshier.
In 2014 the then Minister of Justice, Judith Collins, noting the ballooning cost of the Family Court, reduced access to legal aid, and lawyers in the initial process, and instead focusing on out-of-court resolution. But that, too, fell flat after Collins was forced to backtrack on some of the proposals following pushback from the court and its judges. By 2019 Labour had revoked many more after a review, chaired by former Chief Human Rights Commissioner Rosslyn Noonan, labelled the Family Court as “monocultural and not fit for purpose”.
In 2020 the Government allocated $62 million to begin implementing recommendations in Noonan’s review, including reinstating the right for lawyers in the early stages of Care of Children Act cases, and access to legal aid in eligible cases.
But there were some positives about Collins’ reforms that exist today, including requiring couples to undergo a free parenting-through-separation course before being able to file a non-urgent application (no safety issues) in the Family Court.
And the Family Dispute Resolution service was strengthened to help parents resolve conflicts without going to court. Couples are eligible for 12 hours of mediation either fully funded, if below an earning threshold, or at a subsidised cost of $448.50 per party. However, many can’t afford the cost because the earning threshold is so low, and because mediation is voluntary, one party can refuse to go.
What parents want
One mother of four who has been embroiled in the Family Court for four years over custody battles with her ex-husband wants mediation to be fully funded and made compulsory. She’d also like to see a system where, after mediation, couples can sit around a table with the judge to reach a resolution, with children included in those discussions.
Nathan,* who fought for five years to get 50/50 custody of his son, thinks conflict is less likely to escalate if full explanations accompany the judges’ decisions about care arrangements for children so that each parent understands the reasoning.
“That’s why parents don’t give up because they don’t understand.”
He also favours the court being able to order a psychological evaluation of both parents in cases involving conflict, to pick up any mental health issues or personality traits from the outset. And he wants to see the shared parenting “status quo” established as a starting point, demonstrating each parent’s relationship with the child - how involved each parent is, what activities they share. And he, like others, wants the court to use its “judicial grip” to make sure a parent who is being obstructive – where violence or abuse is not involved - does not get away with delaying tactics.
“Until you’ve been in the position of having a child taken away from you, you have no idea what it’s like.”
Such unexplained separation leads the child to feel abandoned and rejected, and to suffer grief and loss, Nathan says. For months he was limited to four hours each weekend with his child.
“Children need their fathers as much as their mothers,” Nathan says.
Other aggrieved parents spoken to by the Herald complained about the lack of consequences for breaches of parenting orders, forcing them to go back to the Family Court repeatedly. It is those breaches that cause the conflict and costs to escalate, they say.
‘So easily abused’
Tracy says the “without-notice” system, whereby one side can file an urgent application to a judge without hearing from the other side, is flawed. Although she understands there are situations where a without-notice application is the only way to keep a child safe, she says those applications can be too easily abused.
“It’s serve first, ask questions later.”
In Tracy’s case, those questions took more than a year to sort during which time she either didn’t see her children or only during limited supervised access. In her view, without-notice applications, and the serious allegations that accompany them need, to be a priority and dealt with immediately by the court.
“If the process is being abused, that is very quickly picked up and these kids aren’t left in limbo without a parent for a ridiculous amount of time.”
She would also like to see social workers allocated in cases such as hers so that support is offered to both sides while the issues are dealt with.
Tracy describes her experience in the Family Court as a form of “judicial abuse” towards women who have been stay-at-home mothers. She, and other women spoken to by the Herald, talk of leaving a broken relationship and discovering they have little access to funds. They end up fighting through the Family Court for a share of matrimonial property, and child custody. Tracy says in her case she was accused of not having enough money to provide her children with a home or look after them.
“I was on legal aid and he had a barrister. It’s all about revenge and it just went on and on.“
A huge victim industry
On West Auckland barrister Judith Surgenor’s Family Court wish list is specialist therapeutic help for parents and caregivers in intractable cases.
“And make them go,” she says. “Half the time they won’t go because they’re not hearing what they want to hear. “
She says some parents will go to other counsellors outside the Family Court who only hear one side of the story.
“There is a huge victim industry out there who merely support their bad behaviour. They hear that person’s own picture of what’s happened to them.”
Surgenor would also like to see counselling for children provided, something she says is crucial.
“Kids go through hell after separation and they are expected to deal with it.”
The Children’s Commissioner Judge Frances Eivers also wants to see therapeutic services to improve outcomes for children in a better-resourced Family Court. In this year’s Family Court budget nearly $82m will be spent on legal aid, $50m on lawyer-for-child, and $9.15m on family dispute resolution services. However, only $1.73m has been allocated for counselling.
Judge Eivers, like others, wants all those involved in the Family Court to put the best interests of children at the centre.
“That includes considering appropriate timeframes, remembering that a child’s view of time is very different to an adult’s.”
Don’t blame the judges
Lawyers familiar with some of the bitter Family Court battles between parents say “don’t blame the judges”. Based on the evidence, judges do what they think is best for the child and often there isn’t a right answer, they say. Complaints against judges – across all New Zealand’s courts – have risen, from 136 in 2020 to 249 in 2022. Most were dismissed, with only two cases - in 2020 and 2021 - referred to the Attorney-General to appoint a Judicial Conduct Panel to inquire into the alleged conduct.
Judicial Conduct Commissioner Alan Ritchie said that although complaints about overbearing, harassing or bullying behaviour by judges continued to be received, his overall impression was that unacceptable behaviour by judges was relatively rare. Complaints related to the Family Court also rose from 35 in 2020 to 83 in 2022, causing Ritchie to wonder if the Covid-19 era had increased “agitation and tension” in disputes over children and property. The New Zealand Law Society and the New Zealand Psychologists Board also regularly receive complaints related to the Family Court, as does the Children’s Commissioner.
Surgenor says judges generally try to get the best outcome for the child, rather than the parent.
“It’s always the disaffected who complain about the Family Court. In many cases, they lack self-awareness to realise their behaviour is behind it.”
She points a finger at people exacting vengeance at the cost of their children in protracted cases.
“One side has left the other and they’re going to pay for that. They demonise the other parent,” Surgenor says. “They make things as hard as possible for the other parent to have regular contact with their child, missing the point that the real loser is the kid.”
Tactics include insisting on supervised changeovers by a third party, “whipping the child up into a frenzy” so they won’t go with the other parent, claiming the child has Covid and can’t share Christmas with the other parent, or the child and parent simply not being at home for an arranged changeover.
Judge: ‘Less than ideal’ for families
The current Principal Family Court Judge Jaquelyn Moran acknowledges the issues facing the court and the toll that delays take, saying they are “less than ideal” for families. Nearly 50 projects are underway to improve the court system, she says, including the establishment of Kaiārahi Family Court navigators; the appointment of Family Court Associates to help judges; and the opening of the Newmarket Court Hearing Centre in March to help with space requirements in Auckland. Those working in the court say delays have improved in the past year or so, thanks to better resourcing, better case management and more judges.
But the workload is still high. Although fewer cases are coming to court in recent years, the number of defended applications has increased, resulting in more court time required. Last year 55,000 new cases - many of them high-conflict - came before the 57 Family Courts; 54,700 cases were resolved and another 26,600 remained active.
Judge Moran defends the Family Court’s 64 judges, saying they administer more than 30 pieces of legislation covering many different types of cases that can be very complex. Judges are sometimes accused of bias or taking sides but they have to balance the evidence before them and apply the law, she says. The court’s commitment is to children’s safety and decisions have to be made in their best interests.
An emphasis on children
As part of ongoing efforts to reform the court, the new Family Court (Supporting Children in Court) Legislation Act comes into force this month which puts an emphasis on children’s participation in mediation and in caregiving arrangements. In addition, a new digital case management system, Te Au Reka, will roll out in the justice system, starting with Family Court. Te Au Reka will enable participants to engage with the courts online.
In addition measures to better handle cases where violence and/or abuse are involved are underway. Specialised Family Violence and Sexual Violence (FVSV) response training for the court-related workforce was launched last month; this year’s budget included funding to enable more people in the Family Court to access family violence programmes; and from January 2024, victim video statements of children and adults will be able to be heard in the court, to ensure their safety.
Advocacy group The Backbone Collective has long called for cases involving violence and abuse to be handled through a “specialist response” pathway. It also wants a specialist kaupapa Māori Family Court established within the Family Court.
Backbone Collective co-founder Deborah Mackenzie says Family Court cases do not fit one mould and that it is dangerous to view family violence as merely a dispute between parents. Violence and abuse present in different forms, she says, including psychological, financial, litigation, sexual, technology abuse, and using children as a weapon.
One mother interviewed for this series says her PTSD (post-traumatic stress disorder) symptoms hit hard whenever she thinks her ex might go back to court to try to get full custody of their children.
“My whole body shakes,” she says. “Instincts firing at an invisible threat and my skin is prickling with the sick fear and uncertainty of ‘not if, but when’. This is life for me post-FC (Family Court).”
Read the whole series
Part One: Why the Family Court is a war zone
Part Two: Experts warn of the damage to kids
Part Three: The wish list: How to fix the Family Court
Jane Phare is a senior Auckland-based features and investigations journalist, former assistant editor of NZ Herald and former editor of Viva and the Weekend Herald.