Family law: Boys caught up in tug-of-love

By VIVIENNE CRAWSHAW*

Sefa and Jackie had been high school sweethearts. Sefa's family were not delighted with the Palagi girl he had picked and Jackie's parents were equally unimpressed.

Their families were the Montagues and the Capulets of Tokoroa, and Sefa and Jackie certainly felt like star-crossed lovers.

Their families' opposition had driven them closer together and they had moved to Auckland and married young.

Two children later and in their 30s they had parted. They had argued frequently and Sefa finally called it a day.

Jackie was devastated at first, weeping constantly (sometimes in front of the children). Somehow they managed to discuss who would look after the children.

Sefa, who taught at the local primary school, had them after school most days and every second weekend. Jackie, a librarian, lived close by.

The children stayed most nights with her because she could not stand to be away from them for more than two days at a time. As long as Sefa saw the boys (now 7 and 9) most days, he coped.

As time went on the children seemed to move easily between houses. Jackie found some things difficult (such as sharing special days and leaving the children with Sefa for half the school holidays) but by and large they parented the children together and it worked.

About two years after the couple separated, Sefa met a new woman. Sina was many things Jackie wasn't: tall, voluptuous and Samoan. Jackie became tense when the boys stayed over at the weekends.

She issued an edict to Sefa: "I don't want anyone else being around the boys when they're with you. It's unsettling for the children. They're not handling the lack of attention from you."

Sefa was puzzled. The boys seemed fine when they were with him and really enjoyed Sina, who had no children of her own.

She loved reading to them and they had all played tennis together on the last weekend, the boys having a whale of a time.

Still he was not about to jeopardise the relationship he had with the children and asked Sina to see him only when the children weren't with him. "It's just until she gets used to it," he promised.

Sina privately thought it was bonkers for responsible adults not to be allowed to see each other, but she went along with the restrictions on their relationship, which continued to bloom against the odds.

Gradually, Sefa let Sina slip back into the boys' lives. She might pop in to retrieve a book she had left behind, or they would bump into her at the park, walking her dog.

It swiftly brought a stern remonstration from Jackie: "I've warned you. It's not good for the children to have your attention divided. Don't have her there when you've got the boys and that's final."

But Sefa's problems had only just begun. Sina had just found out she was expecting and he was not about to leave her out in the cold. He rang Jackie to explain.

Jackie was strangely quiet on the phone. He had expected tears and shouting but not silence.

It was her weekend to have the children. On Sunday morning he and Sina were woken by a knock on the door. It was James, the older boy, standing on the doorstep, pale and shivering. "Gidday, what's up, mate?" Sefa said, scooping him into a big hug. James stiffened and handed him an envelope, tears welling in his eyes. Then he turned on his heels and ran to Jackie's car waiting outside.

The letter read: "Sefa, The boys and I have decided that we're moving down to Toke to be with the family.

"We've been finding city life too much lately and Mum and Dad haven't seen as much of the boys as they should. You've got other things in your life now and the boys need to be with the parent who has got time for them. I have. Jackie."

Sefa let out a roar that had Sina running to see what had happened. Although his first reaction was to go straight over to sort Jackie out, Sefa decided against that. He tried to calm down and Sina gently suggested he see a lawyer urgently.

He did, and learned that as the children's guardian he had a right to participate in decisions determining where they lived, and that their care should not be changed except by agreement.

Clearly, if the children were in Tokoroa and he in Auckland the children would hardly see him. The lawyer suggested that he try first to talk to Jackie to see if they could work things out. If that failed, he suggested counselling.

Sefa was worried when he could not get Jackie on the phone that day, particularly because the boys had not turned up at school.

He drove around to the house. The doors and windows were shut and no one answered the front door.

He looked through a window and saw that the house was emptied of furniture. They had already gone.

Sefa's lawyer seemed much more decisive when he saw him the next day. Applications were immediately filed in the Family Court, accompanied by an affidavit setting out what had happened and the crumpled note Sefa had received only days before.

Sefa sought custody of the boys, but made it clear in his applications that he was seeking only a return to the arrangements he and the boys had enjoyed over the past three years.

The judge who saw the applications directed they be dealt with on an urgent basis. It took a few days to find Jackie, who had been at a friend's place in Tokoroa.

She filed a defence to Sefa's applications and the court scheduled a short hearing to consider Sefa's interim custody application.

At the hearing, the judge ordered that the children were to be returned to Auckland to be in both parents' shared custody. If Jackie did not accompany them they were to be in Sefa's sole custody.

The children were to remain living in the Auckland area except by consent or further order of the court.

The judge said the overriding principle in interim custody hearings was that the status quo was to prevail unless there were grave reasons concerning the children's welfare that required a change in their care.

Jackie hid out a bit longer after that but Sefa didn't give up and the boys were found. He brought them back to Auckland and they stayed with him and Sina until Jackie threw in the towel for the time being and also moved from Tokoroa back to her home in Auckland.

Unilateral moves do not impress the Family Court. Although resilient, the children took even longer than Sefa to recover from their sudden relocation and to hiding from the Dad they loved.

But that did not prevent Jackie from mounting another effort to move from Auckland, and my next column details the second phase in the saga of Sefa, Jackie, Sina and the children.

* Vivienne Crawshaw is a family law specialist with Gubb and Partners of Auckland. She can be reached through the Herald by email.