Herald on Sunday Editorial: Family Court not for revenge

The entire Family Court system is under review. Photo / Thinkstock

Opinion

It is easy to sympathise with the Auckland man who had to fight to reinstate his name on his son's birth certificate after the child's mother had it taken off by deceiving a medical laboratory and the office of Births, Deaths and Marriages.

The woman presented an unrelated man for DNA testing, saying that he was the father of the child. Naturally, the test result excluded him and she used it in an attempt to shut the real father out of his child's life. She was convicted of preventing the course of justice.

The case has prompted the lab to change its procedures and it now requires the assurance of photographic ID. Presumably there's some soul-searching going on at the Department of Internal Affairs as well. And it's a good starting point for discussions about the role of the Family Court in disputes.

In this case, a sharp-eyed judge saw the potential for deception and prevented the woman using the court as a weapon to give effect to her vindictiveness.

There is ample anecdotal evidence that she is far from being the first to try such a thing. Groups representing fathers have long claimed, with some plausibility, that the Family Court process routinely holds fathers' rights as less important than mothers', for example by granting orders ex parte (so the father does not even know the matter is being heard, much less get a chance to be represented).

The court itself disputes that such favouritism is at play and it is certainly the case that the Principal Family Court Judge, Peter Boshier, has willingly engaged in discussion about making the court's processes more transparent and has made humane and informed contributions to public debate.

But with good reason, the entire system is under review. A new regime, which comes into effect today, will require parties who want the court to rule on their disputes to pay for the service. The charges - $700 to sort out a division of assets; $220 to rule on child care arrangements; and $906 per half-day for hearing costs - will be subject to a fee waiver system to ensure that people with limited means still have access to the court. They will also not apply in circumstances where safety is an issue, such as protection orders.

But they should act as a disincentive to people, such as the wealthy estranged Auckland couple who asked the court to rule on who should have custody of their dogs, who want the state to live their lives for them.

A Justice Department group is presently completing a year-long review of the Family Court, considering, among other things, the extent to which it should enable private citizens to abdicate responsibility for their personal affairs and whether it "should have a therapeutic role as opposed to providing an expeditious application of the law".

It is to be hoped that it will come down firmly on the side of the taxpayer - Family Court costs have increased more than 70 per cent to $142 million over the past six years. But more to the point, it needs to reinforce what might be called the presumption of adulthood.

It is incumbent upon individuals whose relationships collapse to act like grown-ups and, as far as is humanly possible, resolve their differences without state-funded professional intervention. As its name implies, the court is constituted primarily to protect the rights of children and to ensure that they are not unduly penalised by the changes in their parents' emotional inclinations. It is not there to make counsellors rich or to provide state-sanctioned methods of getting even.