Letter to the Editor, North and South -
Family Court bias

Lauren Quaintance's article 'Court of Injustice" (June issue) was timely and topical, and raised questions that need to be asked. Men's groups claiming that the Family Court is biased against men have indeed generated a growing tide of dissatisfaction about the Family Court. For Family Court lawyers (and other professionals working in the court on a daily basis) it is self-scrutiny time - if the Family Court is indeed biased then we need to speak up. Failure to do so would make us part of the problem.

So, is the Family Court biased against men?

The personal stories used in the article illustrate very well, and I would think accurately, the acute pain suffered by individual men who have experienced first the pain of family break-up and then considerable further pain when they have failed to obtain the results from the Family Court that they consider to be fair.

But tempting as it may be to sympathise with those who have suffered genuine emotional anguish, it would be dangerous to simply accept these anecdotal examples as conclusive evidence that the Family Court is biased against men. Anecdotal evidence provides some insight into the effect of the system on the lives of some individuals but it is not a reliable measurement of performance. There are always two sides to every story. In the Family Court there are usually at least three. Children are the innocent victims in any conflict between their parents.

In New Zealand statute law specifically requires that no matter how unjust it may be to one or both parents, the Family Court must put the best interests of children ahead of any competing interests of their parents. This is a good law and few would argue against it. Upholding this law, however, makes it inevitable that, in many cases, one or both of the parent parties will feel aggrieved by the court's decisions.

It is entirely natural to feel empathy for the party granted less contact with his or her children than they want and may even deserve. However, local and international research provides some insight into why courts make decisions that aggrieved parties (both men and women) complain about.

Overwhelmingly, the research confirms, for instance, that it is indeed best for children to have as much positive time as possible with both their mothers and their fathers. However, the research also tells us that children sustain potentially severe psychological damage by exposure to ongoing hostility between their parents. In such cases it is the court's job to balance the individual child's need to have contact with the non-custodial parent against the need to protect that child from the potential damage caused by frequent exposure to parental conflict. In reaching its decision in such cases the court would normally have the benefit of the evidence of at least one child expert who has assessed the particular needs and risks of the individual child in the case.

Research also tells us that some children do better if they have one stable home base (ie, with one parent for most of the time); that major upheavals for children (eg, changes in their environment including care giving arrangements) should be avoided unless there are compelling reasons requiring change; and that it is important for the emotional wellbeing of children that they should be with the parent with whom they have the closest psychological bond. The 'mother principle' referred to in your article has no currency whatsoever and indeed fell into disuse many years ago.

Any court system is at best an imperfect system designed to achieve justice in as many cases as possible, where individuals have been unable to do so privately.

So what is the strike rate of the New Zealand Family Court?

There are men's groups. There are women's groups. The two sides have one thing in common. Both complain bitterly that the system falls far short of serving the interests of their particular group's members. That is their job. Both sides can provide equally convincing evidence including emotionally moving anecdotal evidence to support their arguments.

As lawyers we have no interest in pushing the barrow for any particular class of litigant. We represent men, women and children in the Family Court. One of the key roles of the NZ Family Law Section (with a membership of over 700 family lawyers) is to act as a non-partisan proactive lobby group for families and, in particular, children, in the area of family law. Why? Because as a profession, lawyers are in a unique position to do so from an independent point of view. It is disappointing that North & South did not interview the Family Law Section when researching the article.

What is the truth? Is the Family Court biased against either men or women?

As a professional working in the Family Court on a daily basis, I have seen little evidence to support this claim. What I do see on a regular basis is a system in which judges strive to encourage parties to achieve the best possible result for their families within the framework of the legislation. In doing so, they are careful to take guidance from research findings as well as from expert psychological evidence on the particular needs of the particular children in the case before the court.

However, the Family Law Section does believe that legislative change is required to ensure the Family Court can more effectively uphold every child's right to enjoy positive and meaningful relationships with each of its parents. The Attorney-General has signalled a thorough review of the laws affecting the care of children. In the meantime the Section has called for immediate changes so that:·

• where the court makes an ex parte order (ie, an order made without prior notice to the other parent) that detrimentally affects the access of one parent, then upon application the case must come back before the court within 14 days so that the court can consider the access arrangements in terms of the child's best interests;

• Family Court judges are given much wider and stronger powers to enforce access;

• people other than the parents (including counsel for the child, any other parties to the proceeding and the judge) can ask for a mediation conference;

• the court can direct counselling for children (currently it can direct only parties to attend counselling).

By the time a case gets as far as the Family Court, all members of the family are hurting. The Family Court, though imperfect, severely under-resourced and seldom thanked, is, on the whole, doing its best to assist these families and, above all, to protect and promote the best interests of the children. It has the unenviable job of balancing the competing interests of parties, piecing together the clues left by social scientists and interpreting and applying the legislation. It has no vested interest in favouring any one class of litigant over another. Yet whatever decisions it makes, it opens itself up to attack by one group or another.

Criticism is healthy and necessary but there is also a need to guard against accepting, too readily, arguments advanced by those suffering emotional anguish, no matter how genuine they may be. Just because a litigant did not obtain their desired result from the court or even a result that would be fair to them, does not mean that the court is biased against them. The court is required by statute to be "biased" in favour of children, to hold their best interests paramount. It is also required to apply the laws passed by Parliament - including laws that specifically require the court to restrict access to supervised access where a parent has been violent (until satisfied - usually after hearing evidence - that the child would be safe if access was unsupervised).

As the recent television documentary illustrated, Family Court judges in this country expend a great deal of energy assisting families to resolve their conflicts in a conciliatory and 'holistic' fashion. In addition to their own personal endeavours to assist parties, they utilise a wide range of other tools including court-directed counselling, judge-led mediation, court-directed input from counsel for the child and court-ordered assessments and reports from child experts. It would be far easier, I would suggest, for Family Court judges to simply hear the evidence and impose decisions without first exhausting the opportunities to assist and encourage parties to approach family conflict in a constructive and child-focused way. Thankfully Family Court judges in this country have not reached this stage of despondency and cynicism. Let's try and keep it that way!

Anita Chan, Chair, Family Law Section, New Zealand Law Society