Submission to the Review of the Laws About Guardianship, Custody and Access

National Committee
Father and Child Society

Introduction

The New Zealand Father and Child Society was established in March 1998 and formally incorporated in November 1998. It was created to give local father groups/organisations support in setting up and running their initiatives, as well as giving better access to information and improve communication between these groups. It was also formed to represent fathers on a national level.

At the local level, the various organisations that form part of the society have programs that support fathers and children. For example, the Christchurch Father&Child Trust has been extensively involved in supporting new fathers and their families over the last 2.5 years through regular participation in antenatal classes of three Christchurch birthing providers, publishing a full-colour resource distributed to new parents through the hospitals and involvement in postnatal programmes targeted at postnatally depressed women and their partners and parents under 25. The same organisation also runs Supervised Access for fathers.

As a further example of our locally based work, in 1999 the Wellington Father&Child Trust organised a social policy forum examining the changing roles of fathers in New Zealand society. In 2000, the Wellington Trust organised a very successful one day conference to bring together research, practice and policy on how New Zealand can best meet its commitments under the U.N. Convention on the Rights of the Child: Article 18. Papers from both conferences can be found at http://econ.massey.ac.nz/cppe/

At a national level we are involved in a number of initiatives. However, one is developing a national information network to support positive involved fathering.

At both the local and national level the Father&Child Society and its member organisations have been very supportive of the concept and practice of shared rights and responsibilities in parenting both in intact two-parent families and in couples that no longer live together. On a day-to-day basis, our organisations provide support to fathers in a wide range of family types including fathers in two-parent families who undertake the majority of the childcare, sole fathers who are juggling work and family responsibilities, as well as fathers who are separated from their children. Amongst this latter group we hear many stories of fathers who would like to continue sharing in the parenting of their children, but for a variety of reasons including decisions made in the Family Court, face barriers in achieving this goal. In this goal of achieving equality in parenting we recognise that women have faced barriers to full participation in the labour force and we recognise further change is needed in the employment of mothers to allow fathers to share parenting equally. Overall, we believe that shared parenting should be the norm whether parents live together or apart, and any government intervention that prevents shared parenting needs to considered very carefully.

In this submission we have chosen to mainly respond directly to many of the questions laid out in the discussion document. However, before doing this we have some general comments.

First, changes in social policy and the law need to be supported by a solid body of well-designed research. In designing high quality research, thought needs to be given to the composition of the research team as we have seen recent New Zealand research on fathers which has not been inclusive. The lives of many men have changed dramatically over the last couple of decades in New Zealand, and we need to hear more directly the "voices" of a wide variety of men and not just those in powerful positions within business and government. To complement this type of research, we need more quantitative data on changes that are taking place in family type and the roles within families. In policy making in New Zealand there are dangers that decisions can be made based on anecdotal evidence, isolated case studies, the family situations of those individuals making social policy or ideas of family types that were common in the 1960s and 1970s but are in fact now quite rare.

We are particularly concerned about the lack of reliable information on processes and outcomes of the Family Court. Unlike other areas of the law, the operation of the Family Court is not open to public scrutiny. While there are issues of confidentiality to be considered, overall we believe that public scrutiny assists in the process of delivering fair and equitable decisions.

Second, much of the language that discussions of family change takes place in often reflects increasingly outdated and inappropriate concepts. For example, the term "sole parent family" is a common expression, even if the children actually have two parents who are highly involved but happen to live apart. Part of this problem relates to the way official statistics and much of social policy is based on a "household" unit of analysis rather than wider more inclusive ways of defining a "family". Hence the term "sole parent family" instead of "two home children". We also prefer the term "two-home children" as it focuses on the children rather than the parents.

Our research by our own committee members (Birks 1999, Breiding-Buss 1999) also challenges the concept of primary caregiver. This also reflects the point that determining the primary income provider in a family is also getting more difficult. For example, in New Zealand, and in part due to the lack of paid parental leave, we now see situations where the father work long hours in the first year of a child’s life so the mother can take a year's leave. For many families, this division of labour makes sense in this early period due to families wanting to give their children the best start by exclusively breastfeeding, a goal promoted by government. Yet following this period (and at times even earlier) we are seeing fathers become the main caregiver, or parents sharing roles. Roles are no longer as fixed long term as they were in the past. This is supported by other New Zealand research that shows even within intact two parent families work and caring roles often undergo a number of transitions even within the first five years of a child’s life (Podmore 1994).

The discussion paper talks and rights and responsibilities (sometimes in other discussions referred to as duties). In recent years, a human rights framework has been increasingly drawn upon to address various social and economic inequities. However, in most legal discussions (outside of family issues) rights and responsibilities are seen as indivisible. Responsibilities cannot be fulfilled without having rights.

Finally, while there is a wide diversity of family and household arrangements, our own work and recent New Zealand research has highlighted children's strong bond to "blood" links, even in cases where the parents hardly communicate at all (Fleming and Atkinson, 1999).

Response to Specific Questions

Q2.1 What do you think should be the basic goals of our laws about guardianship, custody and access to children and young people?

A. To maintain family relationships as much as possible. Only to limit these following due process and with good reason. For reasons for decisions limiting these relationships to be clear and open and for the general principles to be justified and subject to debate.

Laws should be implemented by people with appropriate training and with suitably enforced professional standards and complaints procedures. Legal training alone is not sufficient for many of the interventions currently undertaken by many of those working in the Court.

Q4.1 How could the law better reflect a more consensual approach to custody and access?

A. By not signalling a winner-take-all outcome. This would be more readily done if politicians showed a greater awareness of such issues as the shadow of the law, parental alienation, and the parenting needs of children. The latter are more complex than suggested by a preference for sole-custody to a "primary caregiver".

By taking a wider view of family than one based on a household as reflected in "sole-parent family".

Q4.2 What sort of terms and key concepts would do this?

A. Use of the term "two-home child", with two "parents" (not "custodial" and "non-custodial").

Q4.3 Should "guardianship", "custody" and "access" be replaced in the law by a broader range of options for the Court to consider? What might these include?

A. The Court should have a narrower range of options. It has shown itself unsuited to deliberating on these matters and should not restrict the parenting input of a parent without good and explained reasons. Unfortunately the Court currently operates on the basis of extreme solutions, often arising from interim decisions, with one favoured and one rejected parent. This restricts future options and does not sit well with obligations under international conventions.

Q4.4 Do the provisions of the Act ensure that the best interests of children and young people are the prime focus? If not, what changes need to be made to ensure this happens?

A. The Act as applied does not ensure this. It allows the arbitrary exclusion of one parent. Parents have obligations to pursue the best interests of their children. The failure to support a parent's rights prevents that parent from fulfilling that responsibility.

Q4.5 Can we do more to comply with the UNCROC principles (see Appendix 2), which focus on ways the State can advance a child's welfare?

A. Yes. The award of interim custody to one parent is contrary to Article 9.1 as "competent authorities" have not deliberated, nor have they seen evidence, nor have they explained their approach, and it could be questioned whether the Family Court as it currently operates is a "competent authority". Key personnel have shown from their public statements that they are unaware of crucial aspects of the Court's work - in particular the impact that the Court has on the behaviour of others through the incentives and disincentives in the current environment.

Q4.6 Is there a need to better ensure that children and young people are fully informed, that their views on custody and access are sought and taken into account and that they are participating to the fullest extent appropriate? If so, how could this be done?

A. Fully informed includes being aware of all the options available, including shared custody. Children cannot be fully informed while the Court is opposed to this option. Fully informed also includes an awareness of the Court's failure to enforce many of its orders. Consideration of children’s views requires understanding of alienation and the impact of the Court’s actions on children’s perceptions.

Dunne and Hedrick (1994) state in relation to parental alienation that: "A failure to appropriately identify and intervene in the early stages of these cases may result in the alienating parent being given professional support for his/her position, reinforcing the child's need to maintain or expand complaints about the alienated parent. This has the capacity to more firmly entrench the syndrome and to enhance the severity of the dynamics."

This point is also made in Rand (1997), referring to: "... the influential role of other people in the child's life, such as relatives and professionals aligned with the alienating parent, whose endorsement of the program advances the brainwashing process." (p.35)

Q4.7 One possibility is that the law could include guidelines to help the Court determine which course of action would best promote a child or young person's welfare. These could include the child or young person's wishes and the need for real and ongoing parental contact (where appropriate). What do you think of these? Any other suggestions?

A. The Court needs guidelines for its own and everyone else's benefit. These guidelines should be clearly stated and publicly debated. Application of the guidelines should also be monitored.

Q4.8 What are the key issues or concerns about the rights and responsibilities of parents? What ideas do you have for resolving these?

A. By maintaining the rights of both parents. Parents cannot fulfil their responsibilities to their children if their rights are denied them. A first step would involve sensitivity to the ongoing nature of family and parenting relationships after separation and support for these relationships for both parents.

Q4.9 Do you think there should be a greater emphasis in the law on the responsibilities of parents, instead of their rights regarding their children?

A. This question misrepresents the issue. Rights and responsibilities are not alternatives. The rights are necessary to allow parents to fulfil their responsibilities. It is inappropriate and insensitive for politicians to refer to "encouragement" of parents to be responsible in the current policy environment where many parents are, against their wishes, denied the chance to fulfil their responsibilities. In current parlance, isn’t this "blaming the victim"? The Court currently favours one parent, often resulting in the exclusion of the other either as an effective parent or even to the point of cessation of contact altogether.

Q4.10 Should the law encourage an emphasis on ongoing responsibilities of both parents? How could it do this?

A. See answer to question 4.9.

Q4.11 How else can parents be encouraged to take greater responsibility for their children? For example, some have suggested the use of "parenting plans" which would be based on agreement between the parties and be sanctioned by the Court. Do you have any views on this idea?

A. Parenting plans may be useful as they consider not only time but also the nature of the child-parent relationship. "Minor events" can accumulate to have a large impact. For example, parental alienation is not commonly identified with one event or breach of an order. Rather it is the cumulative effect of many smaller actions and comments. Such behaviour is contrary to responsible parenting, and parenting plans may allow the identification of and correction for such behaviour. By the Court not favouring one parent to the exclusion of the other.

Qs4.12-4.17
Q4.12 Should a wider group of adults be considered when thinking about the care of children or young people when parents part? If so/ who?
Q4.13 How could the values and aspirations of Maori be incorporated in the Act?
Q4.14 Should the law especially recognise the role which is played by the wider family/whanau in the raising of Maori and Pacific children? Would including this matter in guidelines to the Family Court be helpful? Have you suggestions for other ways to make sure our law supports the family structures of all New Zealand's people?
Q4.15 Should members of the wider family/whanau, such as grandparents, have the right to apply to the Court for the ability to have ongoing contact?
Q4.16 Should others, such as step-parents, who have had a role in the upbringing of the child or young person, have the ability to apply to the Court for ongoing contact?
Q4.17 What would be the best way to obtain the input of wider family/whanau members in relation to custody and access matters?

A. The prevailing approach by the Court emphasises one parent only. That is far from the reality of the family and community environment in which children live. In particular, extended families of both parents can be very important throughout a person’s life. This applies to all cultures. Relationships with both these families should be supported wherever possible. A major factor in this is the continued support for the input of both parents. While currently not acknowledged as such, unjustified restrictions of contact could be considered to be a form of child abuse.

Q5.1 Are the Courts the best agencies, or the only agencies appropriate to offer dispute resolution services for custody and access matters?

A. No. The Courts are a very poor agency to offer such a service. Lawyers are not appropriately trained, proceedings are costly and take time, outcomes can be significantly affected by events (such as denial of access) during this time, and currently there is a reluctance to enforce orders. The presence of the Court impacts on all other options through the shadow of the law.

Q5.2 Should the Court proceedings be more in the form of an inquiry rather than a contest between parties?

A. Yes, but this may still not solve the problem of unsuitable training and potential for personal experience and involvement to cloud the judgement of those engaged in the enquiry.

Q5.3 Should the Judge and the lawyers who appear before the Family Court always have a duty to promote reconciliation?

A. No. Reconciliation may not be possible, but they should have a duty not to foster further conflict. Currently some lawyers consider it appropriate in representing their client to be deliberately provocative and obstructive.

Q5.4 Is counselling the best way to try and resolve custody and access disputes?

A. Not always. Counsellors may not be impartial, and they may not be well informed about the details and history of the case. They may not be in a position to challenge or verify the information presented. It may be necessary to supplement agreed outcomes with enforceable interventions. The counselling process can be used as a delaying tactic while, for example, alienating strategies take effect. Counselling does not take place in isolation. Rather it occurs under the shadow of the law. While the Court strongly favours one parent, there will always be an incentive for that parent to be intransigent.

Q5.5 Should children and young people be entitled to counselling services and to attend mediation conferences as of right?

A. This can be very damaging. Professionals involved are unlikely to be well informed on the case and so problems may arise as identified in the answer to Q4.6 above.

Q5.6-5.8

Q5.6 Should provision be made for the participation of wider family/whanau in counseling or mediation conferences? How could this be achieved?
Q5.7 Is mediation which is led by the Judge the best way of working for agreements in disputes over custody and access?
Q5.8 Are there other forms of alternative dispute resolution not involving the Court which should be available? What might some options be?

A. These questions are of little value in the prevailing sole-custody environment where there is a "winner" and a "loser". What sense is there in setting up systems whereby two people or groups of people are expected to agree with which one the children will lose a relationship? Dispute resolution mechanisms are not independent of each other. The merits of specific approaches are determined by the wider environment, in particular the expected outcome in the event of failure to agree. The suitability of a Judge for leading mediation depends on the skills and understanding of the Judge. Will Judges be given appropriate mediation training? Will they have appropriate information and time to properly address each dispute?

Q5.9 Is there a need for more information to be given to parents about the purpose of the social worker or psychological reports?

A. There are serious problems with these reports, but less in terms of information for parents than with respect to the quality of assessments and the nature of conclusions drawn. These problems would be reduced if there were less focus on sole custody, especially as in most cases both parents are capable and wish to remain actively involved in their children’s lives.

Q5.10 How can the views of children and young people best be represented in the Family Court? Are lawyers the most appropriate people to do this? Who else should be involved?

A. Lawyers doing this work may have no training in such areas as child psychology and development, parenting, and family structure. They may know nothing of such essential issues as child abuse and parental alienation. It is not always clear that they are aware of their limitations. This can be very damaging. See, for example, the answer to question 4.6 above. There may be a need to specially train people for this role.

Q5.11 What sort of information on custody and access should be provided to children and young people? Who should provide this information?

A. This would depend on the age of the children and the situation they are in. Ideally it would be possible to explain to children that they still have two parents who will continue to be very involved in their lives. Current policy as applied in the Court does not support this.

Q5.12 Do parents need more information about the role of counsel for the child?

A. This question assumes that the current role of counsel for the child is appropriate. Perhaps there should be more input by parents into determining the role of counsel for the child. Different lawyers see their role as counsel for the child in different ways.

Q5.13-5.14

Q5.13 Are there other services that should be provided by the Family Court (for example, social work services, mediation services provided by trained mediators)?
Q5.14 What else could be done to address issues in this area?

A. First it should be recognized how far the Family Court falls short with the services currently provided. The Court is currently very defensive. It should be more receptive to criticisms raised against it.

Q5.15-5.16

Q5.15 Should the proceedings be more open?
Q5.16 How do we balance the need for openness with the essentially private nature of these proceedings and the need to protect the interests of the children and young people involved?

A. There should be more discussion and explanation of the reasoning used by the Court. For example, specific reasons for the decision should have to be stated where decisions are made "in the best interest of the child". Media reporting of such decisions should be permitted, although specific identifying information could be withheld. Data should be gathered and published.

Q5.17-5.18

Q5.17 Does the Family Court have a role in promoting a better understanding of its services and the way it operates? How can this be achieved?
Q5.18 Should the Family Court provide information sessions to potential participants? Who should facilitate such sessions? What information should be provided to participants?

A. Yes. Firstly, it has to understand its services and the way it operates. At present it appears to misrepresent these and key personnel do not appear to understand such fundamental issues as parental alienation, the impact of court decisions on others, and the effect of court processes on outcomes.

Q5.19 Do you have any ideas that might help to make sure that disputes are handled more quickly and cheaply? For example, should the Family Court provide "do-it-yourself kits" to potential parties to proceedings? How should these kits be publicised?

A. These would be helpful. Lawyers sometimes merely serve to distance parties from the proceedings. People who have been through the Family Court themselves could give assistance to parties. For example, they could help in drafting Affidavits or Memoranda, or acting as support people in Court. Such people are already giving support to many people informally.

Q5.20 Should the Court have greater powers to stop people from making repeat applications for custody and access?

A. No. The "informal" nature of the Family Court already results in dubious practices in relation to the law. It would be inappropriate to extend this further. Note, "Preventing or inhibiting access to the Court must always be treated as an unusual step, justifiable only in extraordinary circumstances and permissible only where there was a properly established evidential basis for doing so after a fair and open hearing on the point", D v H (2000, NZFLR, 261).

Q5.21 How could the enforcement mechanisms be strengthened in a way that promotes the welfare of the child or young person?

A. It is hard to enforce access orders when the Court demonstrates little regard for such orders and when decisions are so one-sided in favour of one parent. At present breaches of orders may be disregarded. In other cases mediation or counseling is ordered to resolve a dispute, but this simply results in further concessions by the aggrieved party. The Court is reluctant to punish offenders by way of fines. Use of warrants or a change of custody are extreme measures. By the time they are considered the children may have limited contact with the other parent, so the measures may not be well received.

Q5.22 How can families or communities be helped to support Court Orders? How can we ensure children and young persons' views over time are acknowledged and influence enforcement, or changes, to Court orders?

A. Families and communities cannot be expected to support Court Orders if proceedings are closed. There are situations where schools, churches, etc., can see the benefits to a child of contact with a non-custodial parent, yet the Court restricts such contact. Support for orders is more likely if valid reasons can be given and the Court can show that it has taken into account relevant information and opinions.

Q5.23 Are there any problems with the way these provisions are working?

A. Yes.

Q5.24 Is supervised access, where the access parent has been violent, the best way to ensure the child's safety? Are there other ways that the child can have safe access to a parent who has been violent?

A. Supervised access provisions are used in cases where the access parent has not been violent. The restrictions placed on parents in such access are not conducive to the child seeing the parent in a parenting role. This may be harmful to the child and to the parent-child relationship. It may be more appropriate to have contact in a family environment with members of the access parent’s extended family.

Q5.25 Should the violent parent be required to pay for the cost of supervision when they seek to exercise access rights?

A. No. It is the child’s right to know and be cared for by his/her parents that is being upheld. Perhaps the access parent is seeking to exercise his/her parental responsibility to the child(ren). This should be encouraged.

Q5.26 Is the purpose of the supervised access position generally understood?

A. The recent Ministry of Justice report, Domestic Violence Legislation and Child Access in New Zealand, suggested that this is not generally understood. It could be argued that the report was based on a particular view of domestic violence that may not be universally accepted.

References

Birks, S. (1999) Fathers – Prejudice and policy, in S. Birks and P. Callister. P. (Eds.) (1999) Perspectives on Fathering, Palmerston North: Centre for Public Policy Evaluation, pp. 122-137, http://econ.massey.ac.nz/cppe/

Breiding-Buss, H (1999) Non-stereotypical fathers, in S. Birks and P. Callister. P. (Eds.) (1999) Perspectives on Fathering, Palmerston North: Centre for Public Policy Evaluation, pp. 64-71, http://econ.massey.ac.nz/cppe/

Chetwin A, Knaggs T, Te Wairere Ahiahi Young P, (1999) Domestic Violence Legislation and Child Access in New Zealand, Ministry of Justice, http://www.justice.govt.nz/pubs/reports/1999/domestic_violence/index.html

Dunne J and Hedrick M (1994) "The Parental Alienation Syndrome: An Analysis of Sixteen Selected Cases", Journal of Divorce and Remarriage, Vol. 21(3/4), pp.21-38, http://www.fact.on.ca/Info/pas/dunne.htm

Fleming, Robin and Atkinson, Toni (1999) Families of a different kind: Life in the households of couples who have children from previous marriages or marriage-like relationships, Families of remarriage project, Waikanae.

Podmore, V.N. (1994) Employment and childcare arrangements among families, Wellington: NZCER.

Rand D C (1997) "The spectrum of parental alienation syndrome (Part I)", American Journal of Forensic Psychology, Vol. 15(3), pp. 23-52, http://www.robin.no/~dadwatch/pasdir/pasindex.html

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