Can you just stop fighting please?

21:14, Mar 29 2014

When Carl*, a businessman in his 50s, went to the Family Court a decade ago to try to improve his access to his two young children, it was a nightmare.

"It's incredibly draining. You've been through a marriage separation, your whole family life is ripped apart, your personal wealth is ripped apart, and then you're fighting over being able to see your children."

If the family law reforms that kick in tomorrow match the optimistic predictions of the Justice Department, there will soon be fewer Carls suffering while the blunt instruments of law crash around the delicate interiors of family life.

Instead, disputatious couples will be prodded into sorting things out between themselves, with a mix of stick (mandatory "parenting through separation" classes and "family dispute resolution" sessions before you can file papers to the Family Court, less access to legal aid) and carrot (some state funding for the dispute resolution and parenting classes).

The idea is that if more couples can figure out where their kids should live and go to school and spend Christmas, without involving lawyers and judges, government and the arguing couples will spend less money, and disputes will settle faster, reducing the toxic effects on children of watching parents slug it out.

Critics say the reforms are badly flawed. They say the rights of children will not be adequately protected, that slashed legal funding will make justice unaffordable for many, and that much of the "free" stuff on offer was already available. They also suspect savings of time and money are being overestimated.


Yet the reforms have supporters beyond the ministry.

Family counsellor and mediator Jill Goldson, director of Auckland's Family Matters Centre, says separation and divorce are part of everyday life now, and families need to "find a way to rearrange themselves without it becoming a legal battle".

Goldson has helped couples nut out parenting arrangements, and says complex court processes get in the way.

"I can be working with people and making some progress, then suddenly, during the week before I next see them, one of them receives an affidavit from the other's lawyer, and we go ricocheting backwards."

Sure, court is needed, but not as a first resort.

"If mum is simply saying, ‘You can't see dad because he's a creep', then the law has to step in and protect the children's rights to spend time with dad, and the dad's right to have time with his children.

"But if we can get mum and dad to see that the children need an agreement, then that is so much better."

A recent Australian study found 40 per cent of children involved in protracted Family Court hearings go on to develop substantial mental health symptoms in their childhood. A bit of conflict is manageable, says Goldson, "but lingering acrimony is toxic ". Children get ill - tummy aches, headaches, preoccupation, not sleeping.

This past week, another voice weighs in in support of the reforms. Anthony Douglas, chief executive of the UK's Children and Family Court Advisory Support Service (Cafcass) is coming to New Zealand, co-sponsored by the Family Matters Centre and by Fairway, the Crown-owned mediation company that will co-ordinate delivery of the FDR services.

Speaking from the UK, Douglas said the New Zealand reforms were similar to changes about to be enacted by the UK's Conservative-led government.

In each case, a right-wing government is pushing reforms whose goals explicitly include cost savings. But Douglas says the reforms are not just about Tories pinching pennies.

They're also a response to the profound social change of the past half-century, where family structures have become more diverse, where women have become economically independent, and where many fathers have discovered they can parent in a way that is warm and nurturing rather than distant and cold, and as a result are demanding the right to stay involved with their children even after a relationship ends.

Throughout the West, says Douglas, governments of all political stripes are converging on policies which seek to take custody wrangles back out of court, and to place a greater emphasis on the needs of children.

Cafcass exists to promote the welfare of the 150,000-odd children involved in Family Court proceedings in England and Wales, yet Douglas echoes Goldson in saying that most families shouldn't be in court at all.

Of course, if there is family violence, courts must be involved, but in general, says Douglas, "disputes in families should be resolved around the kitchen table.

"A court process tends to focus on blame, and right and wrong, rather than to resolve things as best as possible for the children."

In the UK around 90 per cent of couples manage to sort things out amicably. With good dispute resolution, Douglas thinks that figure could reach 95 or 96 per cent. That last 4-5 per cent will always need to go to court, either because of violence and safety issues, or because the parents' disagreements are truly intractable.

Carl has experienced both court and mediation. His son was four and his daughter a baby when his marriage ended.

After a year of clashes in and out of court, he had very limited access to the children. After an incident which he says was a "set-up", he was told he could meet his children only under supervision.

Unwilling to do this - "too demeaning, and it would be an admission of guilt" - he walked away, giving up all claims to custody.

Eventually, though, the warring couple began talking again, this time with a mediator. For the first time, Carl saw progress.

"The counsellor was very straight up about her objectives, which were to ensure both parents were represented in bringing up of the children.

"A lot of the conversations were about making sure there was regular access.

"Whenever the discussion started to be sidetracked she pulled it back. There was no room to talk about the bitterness or side-issues."

Conversations got heated (though it helped that swearing was banned) and a few times Carl walked out.

"But sitting there on a couch was far better than having to front up in that court, which was a horrible environment."

In the years since then, court orders have underpinned the various parenting compromises the couple have reached - currently their son lives in one city with Carl, the daughter in another with his ex, and the children shuttle to and fro.

But for the most part those parenting deals have been hammered out in mediation, then delivered to court for rubber-stamping.

For some couples, though, court seems the only option.

Take Denise*. Her marriage was already rocky when she fell pregnant. In the weeks after the birth of their daughter, Denise's husband was frequently out drinking and showed little interest in parenting. He didn't hit anyone, but there were rages, and holes punched in walls. Denise moved out when the baby was a few months old.

Later, though, her ex said he wanted more access. He figured 50-50 was fair. Denise was sceptical, especially after an incident where she had left her daughter with her parents while on a work trip, and her ex picked the child up without warning and disappeared for days.

Making plans without court orders would be ideal, says Denise, but when she and her ex tried mediation, the counsellor called it off because it was so heated.

It wasn't dispute resolution, says Denise, it was her husband saying "I want my daughter, I want my daughter. You're a f---ing bitch".

Court has been stressful and expensive - more than $100,000 over the years. Yet court has proved to be the only way to come to any sort of agreement. Currently, her ex has his daughter not quite 50 per cent of the time.

"He is involved. I absolutely believe children need both their mother and father, but we shouldn't be fighting over our children."

Even though mediation didn't work for her, she likes the sound of reforms that put more focus on avoiding court.

The devil's in the detail. Garry Collin, head of the Family Law section of the Law Society, says he'll be ready to shake Justice Minister Judith Collins' hand if the reforms deliver as advertised, but he thinks they're likely to backfire.

He says cuts to state funding will disadvantage poorer parents. He is concerned by the removal of "lawyer for child" from parts of the process, which he says leaves children's rights overlooked.

Goldson agrees children's needs are central, but says a good mediator puts those needs at the very centre of the dispute resolution - helping warring parents to "disarm" so they can focus on the one goal they will really want to agree on: meeting the developmental needs of their child, which are best served when parents stop fighting.

She's interested too, to see whether the new systems will create opportunities for the voices of children to be heard more clearly in those discussions where parents and other adults decide where and how they are going to live.

"Including them in the discussion has proven benefits to both parents and children. The reforms may open the chance to involve children."

It's also vital, says Goldson, that the success or failure of these reforms isn't taken for granted - that someone is measuring the results and crunching the numbers. "We can only find out what's working and what's not working if evidence-based evaluations are done."

* Names and some identifying details have been changed.


Before filing papers over disputed childcare arrangements parents MUST attend a free "parenting through separation" course (previously not mandatory).

Before filing papers parents must attend Family Dispute Resolution (FDR) sessions (previously not mandatory, and known as "mediation").

FDR to be provided by a wider range of mediators and counsellors (previously only lawyers) .

FDR costs $897, or free if you meet certain criteria (previously free to all).

Lawyers not involved in FDR (previously a mediation might involve two parents, each with a lawyer, plus another "lawyer for child").

Parents to contribute toward cost of "lawyer for child" if case actually goes to court (previously free).

The reforms will have no impact on matters including adoption, care and protection, child abduction, mental health, paternity, separation and divorce applications. 

Sunday Star Times