Submission to the Law Commission on Preliminary Paper 47, Family Court Processes

National Committee Father and Child Society

1. 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 another very successful one day forum 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. In September 2001, we organized a further forum around the topic, "Children in families as reflected in Statistics, Research and Policy". Papers from these conferences can be found at http://econ.massey.ac.nz/cppe/

The 2002 forum will relate to family law.

At the national level the Society has developed a national information network to support positive involved fathering. Our comprehensive web site can be found at http://www.fatherandchild.org.nz/ . It is referred to by Plunket and Parents Centre web sites for fathering information.

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 for intact two-parent families and for couples that no longer live together.

The Society is concerned at the widespread misinformation on fathers’ current and historical roles, and the associated distorted views on the experiences of men and women and the needs of children. These problems are perpetuated through the use of biased research methods and selective use of the available information.

2. General Comments on Preliminary Paper 47

The Preliminary Paper identifies a need for more information to determine whether there is a bias against fathers. This is not necessary. It is sufficient simply to consider the description of fathers presented in the Paper. Similarly, the selection and use of information in the Paper indicates that it is poorly researched. If the Law Commission is so poorly informed, and the issues are therefore inadequately specified, then it is hard to see how the Family Court can be functioning in a satisfactory manner.

2.1 Bias against fathers

It is disturbing to see the generally low opinions of fathers conveyed by paper. To take a few examples:

From paragraph 42: "In the current climate where parents' (especially fathers') rights and well-being are such a dominant part of public and professional discourse, it is timely to consider the rights of children to have their views listened to and taken into account." This is after more that 30 years of "women's rights" activism. The statement ignores the role of rights in enabling people to fulfills their responsibilities. The reference to "timeliness" falsely implies a congruity of mothers' and children's interests and a conflict between those of fathers and children. Hubin (1999), in his discussion of parental rights, points out that these rights are a requirement to enable parents to fulfill their responsibilities to their children, this fulfillment being their children’s right. The statement also suggests that fathers' concerns are being recognized. This recognition is not apparent in the Law Commission's paper.

In paragraph 313, it is reported that "the fathers' movement has arisen as a result of a perceived (and real) incremental loss of power in the private sphere that was not widely felt until approximately the 1980s." This quote relies heavily on the discourse of Carol Smart and is a simplistic and biased comment. An internet search by "Google", or preferably a more complex library search, would show that the fathers' movement was active well before the 1980s. In addition, like the "women's movement" the "fathers' movement" is not one unified movement but has involved fathers with a wide range of interests. As an example, the web site http://www.vix.com/men/history/rdoyle.html provides a history of fathers groups forming around divorce problems in the US at the turn of last century. As a further example, the research by Callister (1998) on the history of the Playcentre movement in New Zealand shows a group of fathers trying to be more involved in their children's lives in the 1950s. For many men, the advancement of women has been welcomed as it has given them more opportunity to cast aside, or at least reduce, the role of primary income earner and to be more involved with their children. This is demonstrated by the increasing time spent by fathers with children in all parts of the industrialized world (Gershuny, 2000). Portraying men as only being interested in "fathers" issues due to a loss of power is an unhelpful and simplistic slogan.

From paragraph 314: "As adult relationships become less stable, parents place more emphasis on the parent-child relationship, which is invested with the qualities of stability and enduring and unconditional love." This suggests that parents concerns for their children are based on self-interest, a common means of dismissing fathers' concerns and desires to be effective parents to their children.

Paragraph 315 shows extreme bias, blatantly asserting that fathers are incompetent:
"And yet the social structure of families before separation or divorce tends to rely on mothers rather than on fathers carrying out parenting tasks for children. Professor Carol Smart says that parent separation: '…highlights the extent to which fathers' relationships with children are mediated by mothers and dependent on mothers' facilitation. This does not mean that fathers do not love their children but it does mean that they often do not know them very well and are not sensitive to their needs, moods and tastes.'"

Is it any surprise if fathers sense a bias against them in the Family Court when this is how they are labeled in a report, the primary author of which is a Law Commissioner and family law QC?

In paragraphs 615 and 616 of this publication, and elsewhere, the term sole parent family is often used as it is seen to be interchangeable with sole parent household. This term implies that children being raised in these family types have only one parent. Yet, most children being raised primarily in one-parent households generally have two living biological parents. Social scientists also know that many children spend time with separated non-custodial parents, so can have two active biological parents and two households. Using the term sole parent family leads to an exclusion of the non-custodial parent (usually the father) in policy discussions and debates.

The reasons for the growth of sole parent households needs to be considered more carefully as it involved a complex mix of changing social attitudes, changes in the labour market and changes in welfare policy, in addition to the very significant role of family law. Understanding the drivers of change is important for developing policies that support families in their various forms, including childrearing couples that do not live together. There is research in New Zealand on this issue (e.g. Callister 1998) but this is not accessed.

When international practice is considered, it relates mainly to the United States and the United Kingdom. However, there are other models that could be explored. These include models developed by the Nordic countries.

2.2 Poorly researched

To put it bluntly, why is there no mention of the vast body of research on fathers, their importance, and the barriers they face due to the operation of family law in New Zealand and overseas? Instead, the Law Commission selectively refers to a limited number of studies which present a narrow and unbalanced description of available information.

As an obvious oversight, relevant material, including references to other sources, can be found in publications from the Centre for Public Policy Evaluation. These publications relate to the New Zealand experience, and include contributions from numerous researchers, including those with recognized expertise in family law. The Law Commission has acknowledged the interest of the Centre in relation to this project. It has also shown an awareness of criticisms raised by the Centre in correspondence in the New Zealand Law Journal. Nevertheless, it ignores those criticisms, while citing publications from Law Commission project that was criticised. The same criticisms (described in Birks, 1998) can be raised in relation to information in this Preliminary Paper. The publications can be found at:
http://econ.massey.ac.nz/cppe/papers/index.htm

There are even glaring distortions in relation to existing law. Paragraphs 497 and 498 on enforcement of access orders fail to mention that legal penalties are simply not being used. Instead, it is suggested that changes to the law are required, thus putting the matter outside the scope of the paper.

The paper also contradicts itself. Paragraph 503 states: "To allow a case to drift can easily set up the situation whereby the obstructive parent creates a new status quo, which a judge some time down the track might be unwilling to disturb, irrespective of the merits of the case." A non-custodial parent may be unwise enough to attempt to prevent this step-by-step erosion of a parent-child relationship, in which case there will be little support from the court, as described in paragraph 381: "However, there is a relatively small, but significant, number of parents whose conduct is characterized by highly conflictual behaviour. This behaviour can continue for a number of years. Such parents will often make repeated applications to the Court over relatively minor issues." In other words, a problem is identified in terms of the failure of existing processes, but this problem is then presented as being one of a problem parent, and there is no mention of the failure to adequately serve the best interests of the affected children.

3 Disregard for significant problems

The paper seems to give little, if any, consideration to the role that the Family Court plays in society and the social issues that it influences. It is hard to see how processes can be assessed outside of this context. Some specific issues that should be understood and addressed in relation to the operation of the Family Court are:

Unless these matters are placed on the agenda, this consultative exercise will be of very limited value.

References

Birks S (1998) Gender Analysis and the Women’s Access to Justice Project, Issues Paper No.2, Centre for Public Policy Evaluation, Massey University, Palmerston North

Birks S (2001) "Family law - what it teaches our children", Fourth Child and Family Policy Conference, Dunedin, 28-30 June http://econ.massey.ac.nz/cppe/papers/fllearn.htm

Callister, P. (1998) Playcentre HisStory, in S. Stover (ed.) Good Clean Fun: New Zealand's Playcentre Movement. Auckland: Playcentre Publications, pp. 77-91.

Callister, P. (2000) Living and Working in New Zealand: Links Between Labour Market Change and Household Structure, Wellington: Institute of Policy Studies.

Gardner R A (2002) "The Judiciary’s Role in the Etiology, Symptom Development, and Treatment of the Parental Alienation Syndrome (PAS)" 28th March 2002, publication pending, currently available at: http://scottish.lbduk.org/rag2.htm

Gershuny, J. (2000) Changing times: Work and leisure in postindustrial society, New York: Oxford University.

Hubin D C (1999) "Parental Rights and Due Process", The Journal of Law and Family Studies, 2(1999), 123-150
http://www.cohums.ohio-state.edu/philo/people/faculty/hubin.1/Research/ PRDP.PDF .

Back to index