Patricia Schnauer: Criticism of Family Court unnecessary and unhelpful

COMMENT

For a politician to attack our Family Court as "racist, sexist, biased and crook" is disgraceful. Muriel Newman's Dialogue article was clearly unhelpful if its overall objective was to encourage constructive reform of family law.

Politicians pass legislation; Family Court judges carry out that legislation. Accordingly, for Dr Newman to lay the blame for any unsatisfactory child custody and access case exclusively at the door of the Family Court is simply wrong.

Her myopic article concentrates on one limited aspect of the whole. She suggests that past Family Court decisions have displayed a bias towards women over men as the preferred custodial parent.

To some extent, such an approach is expected: women today remain primary caregivers, especially in early childhood. Not unexpectedly the Family Court, in its custody decisions, will reflect this social fact.

In a perfect world, in which equality between the sexes and a lack of stereotyping of roles has been achieved, such an approach would be open to criticism. But, overall, judges in the Family Court do an excellent job in resolving difficult and often emotionally sensitive cases which come before them daily.

Unfortunately, Dr Newman's article fails to take into account the wider picture. It does not consider the multifaceted nature of family law, which involves dealing with legal issues against a background of heightened and complex human emotions.

It ignores that often both parents cannot agree what is best for their children when they separate. It overlooks separating couples who use their children as weapons to get at the other parent. It ignores couples who willingly manipulate the law to gain a personal advantage.

Relationship breakups are inevitably highly stressed and emotional. Initially, at least, many people experiencing a breakup are unable to deal coolly, rationally and sensibly with the many difficult legal and emotional issues that confront them.

Dr Newman suggests that it is lawyers and the Family Court that impede people reaching sensible and balanced solutions to their problems. If only family law were that simple. Irrational, unreasonable responses from separating couples are, unfortunately, all too often present as relationships break up.

It is not the Family Court that creates the problems - it is the highly emotional circumstances of the relationship breakup that make family law issues so difficult.

Ultimately, most separating couples do resolve their disputes either personally or with the help of counselling or mediation. Only a small percentage file court proceedings and only a minority of these go to a defended hearing.

Far from being an impediment to resolving disputes, the Family Court provides a useful backstop for many couples. If they are unable to agree, the court is available to impose a solution.

Dr Newman shows little understanding of a legal environment (in which she has never worked) in suggesting that somehow the court and the legal system prevent sensible people from resolving their circumstances after a relationship breakup. That misunderstanding clearly leads to the wholly erroneous view of the Family Court which underpins her article.

Worse, she conveniently fails to acknowledge the doubtful role that politicians have played in family matters. The Family Court is criticised for granting too many domestic protection orders on legal aid. The court is not to blame if politicians pass legislation that extends the criteria for obtaining a domestic protection order to psychological abuse as well as physical abuse. The Family Court does not set the rules for granting legal aid, politicians do.

The Family Court did not enact the Property (Relationships) Act, which legislates far greater legal intervention in property matters, and has increased the work of the Family Court significantly.

Everything about the Family Court is not perfect. Improvement is always possible, and, indeed, necessary. Procedures should be strengthened to ensure that ex parte orders are granted only in appropriate instances. And no doubt some individual Family Court decisions are open to question - all courts can get it wrong occasionally.

Also, the court would benefit from operating in public, provided proper safeguards are put in place to protect the vulnerable. But making the Family Court an open court is certainly not a panacea that will miraculously resolve the many difficult decisions which families face when they separate.

Importantly, any change to the Family Court must be balanced and reflect the total picture. Most separating couples ultimately resolve their disputes by agreement. Any reform of the court needs to build on that fact in a constructive and positive way.

Perhaps there is benefit in the new Australian proposals that New Zealand can learn from. What is clear is that Dr Newman's stinging attack on a court that cannot defend itself is unnecessary and unhelpful.

Such a headline-grabbing and overtly political approach will never form a basis from which worthwhile reform and improvement of family law can develop.

* Patricia Schnauer, a lawyer and former Act MP, is responding to Act MP Muriel Newman's view that our Family Court system is in desperate need of reform.