Debate about the Family Court
In recent weeks criticism of the Family Court has been aired publicly based on anecdotal experiences of a sample of people who have sought the intervention of the court to help resolve disputes in their personal relationships. Some of the accounts contain serious allegations about the safety of the Family Court.
About 60,000 applications are lodged with the Family Court every year. The Backbone Collective, which has gathered and publicised the complaints, has chosen to highlight its concerns by selecting 10 court users to formulate a long series of questions based on their experiences. It now demands that every question be answered.
Many of the questions addressed to this office relate to matters either already being actively considered by Parliament around family violence, or which have been dealt with by Parliament relatively recently. New Zealand is a robust and open democracy, and a common feature for ensuring the integrity and impartiality of the justice system in countries which share these values is an independent judiciary. Although the judiciary in New Zealand is an arm of government, it is independent of the executive of government (Cabinet) and Parliament. There is a clear separation of powers. Therefore, policy and law making, and public engagement in that process, is for the people’s elected representatives. It is the judiciary’s role to interpret and apply independently the laws they pass, with guidance from legal precedent and the higher courts.
Responses to family violence, the care and protection of children and the court’s role are rightly a matter of high public interest. Although by convention judges do not engage directly in public or political debate, nor do they wish to stymie or discourage such debate. However, for the community, policymakers and lawmakers to discuss these issues meaningfully it is
important that debate starts with accurate information. Unfortunately a number of the questions the collective now wants answered are premised on erroneous or flawed interpretations of, and assumptions about, the current legal framework in which the Family Court operates. Broadly, these include claims that:
• The Family Court is closed, secret and hidden.
In fact the Family Court has been increasingly open to news media since law changes in 2004 and 2008, and many of its proceedings can be reported publicly. Family Court appeals data is published annually and more and more Family Court decisions are available online at www.districtcourts.govt.nz, a website set up especially to enhance transparency. Since the site’s establishment nine months ago, more than 200 cases have been published online.
• The Family Court is unaccountable and not independently monitored.
All decisions of the court are open to appeal. This is the safety valve inherent in the New Zealand justice system. It exposes judicial decisions to further scrutiny and accountability. As well, judicial conduct is held accountable through the Office of the Judicial Conduct Commissioner, an independent complaints body that reports to Parliament and adheres to international best practice.
• The Family Court minimises allegations of family violence during consideration of parenting access matters.
Under the Care of Children Act 2004, judges must take into account protection from violence when considering the welfare and best interests of a child. There are mechanisms available to the court so parental contact orders do not force parents to meet when there has been violence between them. Where there is a final protection order and there is a parenting application, the legislation spells out what matters the judge must further consider. The principles covering parental contact are defined in legislation by Parliament, not by the father’s parental rights.
As the Principal Family Court Judge, it particularly concerns me that Family Court judges are being painted unfairly as uncaring and unprofessional and as putting people in harm’s way. This risks undermining public confidence in the courts and the impartial administration of justice, especially among people who may desperately need the court’s help during a distressing period of their lives.
I am proud of the increasingly holistic approach Family Court judges are taking to the complex matters they must consider, based on ongoing education, professional development, and peer review. This is helping families find workable arrangements that aim to protect the most vulnerable and help people to restore their lives.
Judges take an oath to do right to all manner of people after the laws and usages of New Zealand, without fear or favour, affection or ill will. Family Court judges are deeply committed to honouring this oath. It is understandable that not all people who are enduring broken, painful or damaged relationships and who come to court seeking resolution or justice will go away satisfied. But a combative debate that pits the judiciary against those who rely on the court’s help, guidance and intervention is not conducive to improving outcomes, especially for children.
For all these reasons, it is not appropriate for the judiciary to respond in the way the collective seeks. Nor do I intend to make any further public comment on the collective’s campaign and allegations made therein.
Then you’ve never sat in the Family Court in Greymouth. Where none of the points you’ve highlighted are evident.
Where a woman with a protection order was made to wait 2 hours in a waiting room with her abuser and his family, while the judge was delayed by a flight. She got to witness all three lawyers: her own, the lawyer for the abuser and the lawyer for child greet each other like long lost friends and chat about a recent school reunion they had all attended together with the abuser’s mother and Aunt, whom they address by ‘pet’ names. Every one in that room stayed silent while her abuser taunted and threatened her. She was told she shouldn’t have a support person with her because she would be seen as ‘weak’ and she should prove she’s the mature one in the dispute and stand alone and righteous. Her support person had to fight to be allowed to wait outside the Court because ‘it’s a family issue, not a spectator sport’. Her abuser was allowed both his mother and Aunt into the room. She was g even a deadline to introduce sworn affidavits. Her lawyer decided they weren’t written in a way that judges like, so took them to ‘tidy up’. Judges don’t like too many words; judges don’t like emotive comments: you can’t put anything into an affidavit that is an accusation if it hasn’t been tested in the District Court’ Two affidavits that identified eye witness accounts of horrific abuse against the mother and one child, were destroyed because ‘even if the person saw it happen, he was never arrested and it’s only heresay’. The abuser had three affidavits all written by the same person giving emotive opinion and blatantly innaccurate ‘made up’ stories. They were admissable. The judge made a point of requesting that the lawyer for the victim should attend professional development to assist his management of witness statements and remarked on his consistently poor quality of written evidence. The abuser’s mother and Aunt negotiated a ‘deal’ with the support of the three lawyers outside of the court during the lunch hour: access to the children, she cannot remove them from the town without the permission of the family, they must attend a religous based school, they must reside with their abuser and his family through all religous holiday and family occasions, weekends and all school holidays – she can have the car, the furniture and the kids during the week. She didn’t agree to it, she stood on her own in that court and said it clearly: I’m not interested in property, I am concerned about the safety of my children. I want to be heard.’ She was told by her lawyer that she must sit down and not anger the judge. The judge was impressed by the ‘family’ willingness to resolve the issues and congratulated them on a fair division of custody and access. then he ruled ‘in his minute’ that the victim must not leave the community, the children will attend the school requested by the ‘father’ (he was outside smoking by this time). The judge was not going to deal with property, the father and his family could see the children every second weekend, he had one phone call per week and they could alternate Christmas -the family can have every easter. She received a bill from NZ Law or $5000 because the case included property. Eventually she got a tape recording of a phone call the abuser made to the eight year old. In which he threatened to kill his mother and described in great detail how he was going to do it. She took it back to court -by being dragged there for refusing to allow her children to go back to the house. The judge reused to hear it in Court because it was considered inadmissable, the abuser did not know he was being taped. He heard it though in his chambers – it was enough for him to return to the court and remove the abuser’s Guardianship over the children, he now has no parental rights. Two weeks later another judge gave the abuser’s mother access on the condition that the abuser was never left alone with the children. so they went to the house where the thug was now under a 23 hour curfew awaiting a trial on a charge of attempted murder ( not his family though, another drunk in a pub), and she went off to work leaving them with him. That was 10 years ago. Four weeks ago the abuser broke into that woman’s home when her son and his friend were asleep in their beds and assaulted the boys. just to prove he still can – the boys won’t make statements because he’s threatened the hounger brother and mother if they ‘talk’. The police auggested a Protection Order -Women’s Refuge weren’t keen, in the local view: ‘you can’t really do anything about it, in Domestic Violence cases, it’s really hard to get a Criminal conviction without a witness statement, it’s just your word against his’. Only, this isn’t Domestic Violence any more, it’s a Home Invasion – it won’t go anywhere near family court. Family Court is a joke in Greymouth -it stands firmly in the way of protecting family.
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