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Absent by Law

by Mark Stephenson

For years, groups of separated fathers have been claiming that the Family Court’s bias against men leaves children without a father that need not be.

In 2000 parliament voted down a proposal to put Shared Parenting after separation as an aim into the law, saying this would violate the law’s focus on the “best interest of the child”.

But this year, the Law Commission put out a report recommending sweeping changes in the Court system to ensure that both, men’s and women’s voices are equally heard. Mark Stephenson talked to critics and supporters of the present system within and without the legal system.

Jamie, a quiet three year old, climbs up on John’s knee and curls up in his arms. It is clear that John Mason is a loving father, committed and involved. John lives with Bridget, Jamie’s mother, and has done so for the last seven years.

But John also has a daughter, Joanne. He hasn’t seen her since 1995, though not for want of trying. She is alive and growing up without him, something that John can never forget. This is his story (all names have been changed).

Back in 1991 John married Penelope. They went overseas to work. There were difficulties in the relationship soon after they married . Penelope wanted to leave but John wanted them to go to counselling together. Joanne was born in 1992.

They separated later that year and Penelope returned to NZ, taking Joanne who was just a few months old. In 1993, Penelope contacted John overseas asking him to return to re-unite the family. He was still in love with her and continued to want and expect to be an active parent to his daughter. However, after a couple of days back in New Zealand, things broke down again.

The relationship continued in a fragmentary way – sometimes separated, sometimes living together, even after their divorce in 1994. A pattern emerged. When Penelope felt friendly towards John, he was able to see his daughter, unrestricted. When she was displeased John saw his daughter only for a couple of hours three times a week.

In 1994 she prevented contact altogether. John then employed a lawyer to take his case to the family court. At this stage John felt confidence in the legal system and assumed the court would work towards a fair parenting arrangement without bias.

Before going to a full access hearing, John and Penelope agreed to see a child psychologist to work out a shared parenting plan. Joanne, now two, had been in full-time day-care five days a week since she was 11 months of age.

Penelope was teaching full-time. John made a commitment to care for Joanne every day during the week till she went to school.

The child psychologist, however, recommended that Joanne stay in day-care – she claimed Joanne had not bonded with her father, even though she had spent hundreds of happy hours in his sole care since he had returned to NZ. John rejected the psychologist’s report. It seemed she valued day-care more than parenting, by a father at least.

John and Penelope’s on again – off again relationship continued, but in mid-1995, John decided ‘enough was enough’. He left her and never went back – except to maintain contact with his daughter. He had no other partner but felt he had tried his best to make the relationship work.

A short while later, John met Bridget and formed a relationship which has lasted to this day. Two months later, Penelope prevented John seeing Joanne, who was then three.

He went to the Family Court again, this time representing himself. The judge issued an access order but Penelope obstructed this order. John went back to court. Another access order was given.

On the appointed day John went to pick up Joanne. He was met by Penelope, Joanne and a friend of Penelope’s. Joanne became upset and would not go with John. He left and returned to the court to request a warrant to enforce the access order – as the judge had agreed to do.

However, Penelope’s friend, a lawyer, had ‘witnessed’ Joanne’s distress and detailed this in an affidavit to the court. The judge now decided he would not compel the access order. He insisted the same psychologist be employed to re-assess the situation. John objected but this was over-ruled.

John decided not to subject his daughter to the confusion or manipulation that might result from a protracted court battle. He sadly withdrew his application for access. Though he hasn’t seen his daughter for the past seven years, she remains in his thoughts and rests in a place in his heart that still wants to care for her.

John’s loss is not unusual. Look at any class of boys in school now. Most will father children when they grow up—and many of them will suffer the pain of losing them and be prevented from caring for them.

Are we creating a generation of people un-fathered? How will the boys learn to be fathers themselves? How will the girls learn to recognise unconditional love from a man? Some feel that fathers, and men in general, have been devalued.

And yet, when fathers are seen taking an active role with their children, women particularly are unreservedly supportive. They say, ‘it’s great to see fathers involved in school events’, or ‘lovely to see him taking time off work to be there for them’, and frequently, ‘I wish my Dad had was around for me as much when I was a little girl – what a lucky daughter he has’. Fathers are valued greatly.

By their children in particular. By society in general, for the child’s sake. There is a very special relationship that children need and want. Only an active father can provide that. It is not better than a mother, only different.

Fathers Activist Robert Murray, of Child Advocacy Services, Wellington, says the Family Court ‘doesn’t believe in shared parenting’. He believes parents have responsibilities, not rights. Their duty is to give the best care they can for their children, within a relationship or separated.

He advocates the right of children to be cared for by both their parents. He provides support and advice for parents, mostly fathers, about custody issues, access, the court process, Child Support and the legislation.

The Family Court, he says, was influenced by flawed research in the 80’s which claimed that sole parenting was better than divided shared parenting.

This is widely discredited now but the court is slow to change. Robert Murray admits that the legislation makes ‘the welfare of the child’ paramount but this is undefined. In practice, he says, ‘whatever the mother wants, she gets’.

He is outraged by the Domestic Violence Act and the use of protection orders, as he sees it, to prevent fathers from being with their children. These are ‘ex-parte’ orders.

They can be served and acted on without anything being proven. They can be put in force immediately. A policeman would come to the door and order a father not to approach his ex-partner or his own children.

The law says that the recipient of the order then has three months to defend himself, but until the order is pulled the accuser determines whether and how the defendant has any access to his children. Once a final order is given, it usually includes the children and lasts for life. A person has to prove, in effect, their innocence to avoid losing their children.

Things have changed slightly, though: a parent can defend themselves before the order takes effect. However, this will cost thousands of dollars, legal aid is far from automatic for men, and there is a perception that fathers can’t win in the courts; even lawyers advise against fighting cases, Robert Murray says. Maybe this is why so few cases get to a defended hearing in the Family Court. It becomes a self-fulfilling prophecy.

Some, like Bruce Tichbon, of FARE (Fathers Apart Require Equality) even believe social attitudes have shifted so much that now we live in a matriarchal society . The police and the courts are agents of social control, with women in power. The Family Court receives a lot of anger from men, and rightly so he says, but it is just one minor area of concern – the tip of the iceberg.

The ‘welfare of the child is paramount’ is written in law but it is a smokescreen. Bruce says, ‘It is the unwritten laws that are important, and they can only be detected by the outcome.’ This is where the discrimination is, he feels. The Family Court is used by women to punish men who break the rules.

The family, and the court, is used as leverage to extract money, property and power. ‘When I was divorced, I realised that the mother owned the family’, says Bruce. He is very pessimistic about the viability of the family unit, in New Zealand particularly.

The judges of the Family Court and others who work for the system disagree. They see it as a much maligned institution and say that the court works very hard to put the interests of children first. They have counselling, mediation and psychology services all working to that very end.

There is an impressive list of services, time and money spent on finding a solution before a court hearing becomes necessary.

Both sides would agree on one point, however. About 50% of marriages/partnerships eventually end in separation but only 10% of the 10-15,000 yearly custody and access applications go to a full defended hearing in the Family Court. Many people work out parenting arrangements without any legal input.

A child psychologist with the Family Court I spoke to felt that we have the best, most child-centred system in the world. If the court had separated men from their children, there was always a good reason for that. However, she mentioned that if access arrangements weren’t complied with, that was regrettable but the enforcing power of the court was limited.

She said, ‘Children of course benefit from having two parents who love them, role models of both sex with whom they can experience a relationship, providing the pattern for later relationships with peers, partners and their children.’ She was not able to quote from current research on shared or sole parenting.

For John Brickell, of the Wellington Father and Child Trust, the Family Court does not deal with the child’s issues; it focuses on the parents’ needs. Its adversarial nature creates a winner/loser situation in which the child is treated as property. John has solo-parented his own son, now fifteen, since he was a baby.

He now runs courses for new fathers in Wellington. John thinks he ‘won’ his custody battle because, though both parents were considered ‘fit’, he had been sole parent for the previous two years. The court tends to default to the existing situation.

He also feels that ex-parte protection orders are unjust, particularly when the proceedings of the court are not transparent. In terms of the law itself, he says the Guardianship Act regards men as income providers rather than caregivers, and it excludes the extended family.

What would be better than the family court as it is? John Brickell immediately says, ‘take the lawyers out’. A court dedicated to the child’s issues only, with a legal advocate, as opposed to two lawyers fighting for the parents’ interests. Other issues such as property should be dealt with elsewhere. At present children’s welfare is mixed up with the splitting of the parents’ resources.

Mark Heneghan is Professor of Law at the University of Otago, and a family law expert. He believes that when there are disputes, it is essential that both parents are able to obtain expert counsel to represent their rights. This assumes affordable, fair and equal access to legal services.

He makes the point that a child advocate will still act on whatever they feel is ‘best for the child’, there is no such thing as a neutral opinion.

The Guardianship Act, he says, has no bias in theory. It used to rely on ‘the mother principle’, which is the assumption that when parents part children are better off with the mother. This is no longer part of the Act but ‘the assumptions may remain’ though he believes that the Family Court makes great effort not to be influenced by them.

As an example – a custodial parent can’t just remove children from a non-custodial parent who is entitled to access. So there is some recognition of a child’s right to both parents.

The judges follow the direction of parliament through the Guardianship Act. They must err on the side of protection of the child, Professor Heneghan says. The Act allows a protection order to be taken out if the victim ‘perceives danger’ to themselves or the children. The standard of proof required is on ‘the balance of probabilities’, which is much softer than required in the criminal court.

Once a protection order is taken, the person is assumed to be harmful to any children and this will be taken into account at any custody hearing. Essentially, a small risk of physical harm to a child outweighs the value of parenting by the accused, usually a father. There has been a clamouring for change in family law in this country. The present legislation dates back to 1968.

A lot has changed since then. In 2001 the Ministry of Justice released an analysis of submissions to their discussion document: Responsibilities for Children: Especially When Parents Part.

The most common responses were pleas to ‘focus on the best interests of the child’, and ‘both parents to take an active role’. Asked about underlying principles, most cited parental responsibilities, children’s rights to welfare and safety, access to both parents and wider family.

I spoke to Paul James, policy manager at the Ministry of Justice. What changes to the law were proposed? And which rights of the child, exactly, would the new Care of Children Bill aim to protect? In a written reply, I was informed the Bill would draw on ‘rights that have been recognised internationally’, ie UNCROC (United Nations Convention on the Rights of Children).

UNCROC prioritises protection from physical harm. Article 9 says ‘sometimes the best interests of a child will be separation from a parent, … where there has been abuse or neglect, or where parents are living separately’.

But, New Zealand should ‘respect the right of a child … to maintain personal relations and direct contact with both parents … except if contrary to the child’s best interests’. Some might say that leaves plenty of scope for simply maintaining the unsatisfactory status quo.

The Care of Children Bill will, however, support the child’s right to both parents, as well as ensuring ‘both parents retain an ongoing guardian role’ whichever parent the child lives with. It intends to change the Family Court to make it less adversarial, more child focused, and increase its power to enforce orders. It will be interesting to see what practical changes result.

The law is just one aspect of society. The Family Court is just one organ of the law. It is, however, a public arena where the rules of society are played out. Many say it is not public enough – its findings and how they were arrived at should be held up for public scrutiny. Everyone claims to be acting in the best interest of the child but there is no gold standard.

As Mark Heneghan would say, there is no ‘standard of rightness’ to replace ‘the mother principle’. Better, perhaps, for the law to declare an aim, e.g., shared parenting. Not everyone would agree but the court’s decisions could then be judged against a standard.

Society has changed much in the last thirty years: it is no longer assumed that women should look after children or that men should be providers. Yet these assumptions still hover in the background. Men feel pressure (and want) to be active, hands-on fathers as well as to provide income.

This starts long before they consider having children. These conflicting messages are highlighted when parents part. Suddenly a father is reduced once more to the role of income provider only, through Child Support payments or directly.

Perhaps we should look to a part of history of our closest neighbour, Australia. a ‘Stolen Generation’ was created when a bigoted society felt that children of mixed race would be better off without their aboriginal mothers. They forcibly removed them. These, also, were well meaning citizens who had ‘the children’s best interests at heart’.

They valued social place over a human emotional bond. In retrospect we see it as cruelty through ignorance. When the blade of our own history falls, will we look back on our family law with similar regret?

Things have changed slightly, though: a parent can defend themselves before the order takes effect. However, this will cost thousands of dollars, legal aid is far from automatic for men, and there is a perception that fathers can’t win in the courts; even lawyers advise against fighting cases, Robert Murray says.

Maybe this is why so few cases get to a defended hearing in the Family Court. It becomes a self-fulfilling prophecy.

Some, like Bruce Tichbon, of FARE (Fathers Apart Require Equality) even believe social attitudes have shifted so much that now we live in a matriarchal society. The police and the courts are agents of social control, with women in power. The Family Court receives a lot of anger from men, and rightly so he says, but it is just one minor area of concern – the tip of the iceberg.

The ‘welfare of the child is paramount’ is written in law but it is a smokescreen. Bruce says, ‘It is the unwritten laws that are important, and they can only be detected by the outcome.’ This is where the discrimination is, he feels. The Family Court is used by women to punish men who break the rules.

The family, and the court, is used as leverage to extract money, property and power. ‘When I was divorced, I realised that the mother owned the family’, says Bruce. He is very pessimistic about the viability of the family unit, in New Zealand particularly.

The judges of the Family Court and others who work for the system disagree. They see it as a much maligned institution and say that the court works very hard to put the interests of children first.

They have counselling, mediation and psychology services all working to that very end. There is an impressive list of services, time and money spent on finding a solution before a court hearing becomes necessary.

Both sides would agree on one point, however. About 50% of marriages/partnerships eventually end in separation but only 10% of the 10-15,000 yearly custody and access applications go to a full defended hearing in the Family Court. Many people work out parenting arrangements without any legal input.

A child psychologist with the Family Court I spoke to felt that we have the best, most child-centred system in the world. If the court had separated men from their children, there was always a good reason for that.

However, she mentioned that if access arrangements weren’t complied with, that was regrettable but the enforcing power of the court was limited.

She said, ‘Children of course benefit from having two parents who love them, role models of both sex with whom they can experience a relationship, providing the pattern for later relationships with peers, partners and their children.’ She was not able to quote from current research on shared or sole parenting.

For John Brickell, of the Wellington Father and Child Trust, the Family Court does not deal with the child’s issues; it focuses on the parents’ needs. Its adversarial nature creates a winner/loser situation in which the child is treated as property. John has solo-parented his own son, now fifteen, since he was a baby.

He now runs courses for new fathers in Wellington. John thinks he ‘won’ his custody battle because, though both parents were considered ‘fit’, he had been sole parent for the previous two years. The court tends to default to the existing situation.

He also feels that ex-parte protection orders are unjust, particularly when the proceedings of the court are not transparent. In terms of the law itself, he says the Guardianship Act regards men as income providers rather than caregivers, and it excludes the extended family.

What would be better than the family court as it is? John Brickell immediately says, ‘take the lawyers out’. A court dedicated to the child’s issues only, with a legal advocate, as opposed to two lawyers fighting for the parents’ interests. Other issues such as property should be dealt with elsewhere. At present children’s welfare is mixed up with the splitting of the parents’ resources.

Mark Heneghan is Professor of Law at the University of Otago, and a family law expert. He believes that when there are disputes, it is essential that both parents are able to obtain expert counsel to represent their rights. This assumes affordable, fair and equal access to legal services.

He makes the point that a child advocate will still act on whatever they feel is ‘best for the child’, there is no such thing as a neutral opinion.

The Guardianship Act, he says, has no bias in theory. It used to rely on ‘the mother principle’, which is the assumption that when parents part children are better off with the mother. This is no longer part of the Act but ‘the assumptions may remain’ though he believes that the Family Court makes great effort not to be influenced by them.

As an example – a custodial parent can’t just remove children from a non-custodial parent who is entitled to access. So there is some recognition of a child’s right to both parents.

The judges follow the direction of parliament through the Guardianship Act. They must err on the side of protection of the child, Professor Heneghan says. The Act allows a protection order to be taken out if the victim ‘perceives danger’ to themselves or the children.

The standard of proof required is on ‘the balance of probabilities’, which is much softer than required in the criminal court. Once a protection order is taken, the person is assumed to be harmful to any children and this will be taken into account at any custody hearing. Essentially, a small risk of physical harm to a child outweighs the value of parenting by the accused, usually a father.

There has been a clamouring for change in family law in this country. The present legislation dates back to 1968. A lot has changed since then. In 2001 the Ministry of Justice released an analysis of submissions to their discussion document: Responsibilities for Children: Especially When Parents Part.

The most common responses were pleas to ‘focus on the best interests of the child’, and ‘both parents to take an active role’. Asked about underlying principles, most cited parental responsibilities, children’s rights to welfare and safety, access to both parents and wider family.

I spoke to Paul James, policy manager at the Ministry of Justice. What changes to the law were proposed? And which rights of the child, exactly, would the new Care of Children Bill aim to protect? In a written reply, I was informed the Bill would draw on ‘rights that have been recognised internationally’, ie UNCROC (United Nations Convention on the Rights of Children).

UNCROC prioritises protection from physical harm. Article 9 says ‘sometimes the best interests of a child will be separation from a parent, … where there has been abuse or neglect, or where parents are living separately’. But, New Zealand should ‘respect the right of a child … to maintain personal relations and direct contact with both parents … except if contrary to the child’s best interests’.

Some might say that leaves plenty of scope for simply maintaining the unsatisfactory status quo.

The Care of Children Bill will, however, support the child’s right to both parents, as well as ensuring ‘both parents retain an ongoing guardian role’ whichever parent the child lives with.

It intends to change the Family Court to make it less adversarial, more child focused, and increase its power to enforce orders. It will be interesting to see what practical changes result.

The law is just one aspect of society. The Family Court is just one organ of the law. It is, however, a public arena where the rules of society are played out. Many say it is not public enough – its findings and how they were arrived at should be held up for public scrutiny.

Everyone claims to be acting in the best interest of the child but there is no gold standard. As Mark Heneghan would say, there is no ‘standard of rightness’ to replace ‘the mother principle’. Better, perhaps, for the law to declare an aim, e.g., shared parenting. Not everyone would agree but the court’s decisions could then be judged against a standard.

Society has changed much in the last thirty years: it is no longer assumed that women should look after children or that men should be providers.

Yet these assumptions still hover in the background. Men feel pressure (and want) to be active, hands-on fathers as well as to provide income. This starts long before they consider having children.

These conflicting messages are highlighted when parents part. Suddenly a father is reduced once more to the role of income provider only, through Child Support payments or directly.

Perhaps we should look to a part of history of our closest neighbour, Australia. a ‘Stolen Generation’ was created when a bigoted society felt that children of mixed race would be better off without their aboriginal mothers.

They forcibly removed them. These, also, were well meaning citizens who had ‘the children’s best interests at heart’. They valued social place over a human emotional bond. In retrospect we see it as cruelty through ignorance. When the blade of our own history falls, will we look back on our family law with similar regret?

Next: Times Up For Timeout

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