This year marks the 40th anniversary of the creation of the New Zealand Family Court.
It is the nation's second-busiest court. In matters of parenting or child custody, the court's decisions can run the gamut from shared parenting to reversal of custody and even parentectomy.
So, one wonders about the court's performance over the course of two generations. Does the Family Court get it right more often than not in cases involving children?
The answer is unknown. The only published metrics of the Family Court are quantitative. They reflect budgetary and short-term concerns: annual number of applications filed, disposed, outstanding, delivery time of judgments and appeals statistics.
We know nothing about the outcome of the children whose lives may have been forever altered by the court's decisions.
We should care about the performance of the Family Court for three principal reasons:
- The ability of the court to dramatically impact the lives of children;
- New Zealand's emotional child abuse statistics are appalling;
- The Family Court runs the risk of eroding the public's trust.
There is no data on the quality of the Family Court's product, i.e., its rulings. Normally, statistics on appeals might give a clue as to the calibre of a court's decisions. However, the unique nature of family law in New Zealand means it is not a useful metric despite an automatic right of appeal in these matters. In 2020 there were only 25 successful appeals among the approximately 60,000 annual applications filed with the court.
Cases of emotional child abuse are often brought to light during Family Court proceedings. Unfortunately, there is no shortage of statistics on the dismal state of tens of thousands of children in New Zealand. The Unicef New Zealand website succinctly states: "New Zealand has one of the worst records of child abuse in the developed world".
The Oranga Tamariki July report "At a Glance: Prevalence of Harm to Children in New Zealand" states that over 13,000 children were abused last year. Emotional child abuse alone was equivalent to the sum of all sexual abuse, physical abuse and neglect cases.
New Zealand's Office of Children's Commissioner statistics for the period 2015-2011 report an annual average of 20,708 substantiated cases of child abuse. Emotional abuse was perpetrated on 55 per cent of those children.
One reason for the abysmal statistics may be the absence of statute law to protect children from emotional abuse. It is not a criminal offence, unlike sexual or physical child abuse. The law only protects children from witnessing family violence or the risk of witnessing it.
Public trust in the institutions of government is a fragile thing. The Family Court relies upon a level of faith unlike any other government entity because of the absence of information on its performance.
That trust is tested for example when a High Court judge states that a Family Court ruling leaving a child in the sole care of an abusive parent – and excising the other parent - will result in the child continuing to be emotionally abused and suffer. That trust is doubly tested when the appeal is declined in full.
Parliament's changes to family law are experienced during the Family Court process. It is not difficult to imagine the blame for any negative unintended consequences being laid at the court's doorstep by parents.
It is not comforting when the senior Family Court judge states that the court is "heavily burdened" but neither biased nor broken. There is no ability to claim positive outcomes by the court because the data is nonexistent.
One way to measure the quality of the Family Court rulings is to perform a longitudinal study of children of litigating parents in which emotional child abuse was found to be a matter of fact by the court. Put simply, track the emotionally abused children of Family Court cases and learn how they have fared later in life. The research can be anonymised to protect children's privacy.
Longitudinal studies have been completed on child abuse victims and children of divorce. A longitudinal study of emotionally abused children of child custody litigation would be a first.
It would give insight as to the outcome of the court's intervention. It would have the potential to revolutionise the Family Court.
Some of the issues raised have been acknowledged by the judiciary earlier this year. However, there is a deafening silence on the matter of the Court's actual performance over its history.
Only until there are qualitative statistics and facts can the Family Court better protect children and instil trust in the institution. A longitudinal study would be a reasonable place to start.
To stay the course or do otherwise is to continue to operate the court in a vacuum; never knowing the efficacy – or damage – of its rulings on children.
- Loren Portnow experienced over six years in family law litigation during which time he completed an LLB at the University of Auckland.