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Time to Move Family Law Forward

Time to Move Family Law Forward

Wednesday 22nd Nov 2000 Dr Muriel Newman Speech -- Social Welfare

As we approach the end of the first year of the new millennium, we can look back on one hundred years of mixed progress.

In areas where the free market operates and competition is the driving force, technological advancements have seen horses and carriages give way to motor cars and aeroplanes, carrier pigeons replaced by telephones, faxes and email, and the Encyclopaedia Britannica being overtaken by the Internet. In areas where competition has been excluded in favour of monopoly control by either central or local government, progress has been limited. In some cities, failures of roading networks mean that it can take longer to get to work by car than it did by horse and cart all those years ago; in spite of all of our advancements in education, children can still emerge from state run schools after 12 years, unable to read, write or do basic arithmetic; the public health system remains clogged with growing waiting lists, as does the court system.

That leads me to mention a specific area of government controlled failure: the family law legal system. In my mind, it is a mess with high fees, costly delays, a legal aid system that is blowing out of control, ill-defined laws, and an assumption of secrecy which is increasingly responsible for growing pain and dislocation in society. Back in the late sixties when ‘no fault’ divorce was introduced, the custody of children was generally awarded to mothers in the family home – mothers in those days generally stayed at home to look after the children, while fathers worked. Judges decided that in the case of separating parents, it was in the best interests of the child to ensure they had the stability of one home and one parent.

During the last 30 years however, society has moved on. The problem is, that family law has not. Family law in New Zealand is based on an adversarial system. It operates under a veil of secrecy in a closed court. People who believe they have been treated unfairly in the Family Court, are not able to speak openly about their experience. If they believe an injustice has been done, the system denies them the right of public appeal, either directly or through the media. Their only recourse is further costly litigation and if they are unlucky enough, as many are, to be facing a respondent who is being funded by legal aid – and well over a half of last year’s estimated $100m legal aid bill was for family law cases – the whole process can be crippling, not only financially, but emotionally and spiritually as well.

For when a couple separates, the family court takes the two parents, who in most cases love their child and want to do all that they can for them, and pits them against each other. One becomes the winner, gaining custody of the child while the other becomes the loser, a mere visitor in their child’s life. The biggest loser though, is the child, for it is the child who walks into a courtroom with two parents and walks out with one.

With the tragic consequences of inadequate parenting all around us, we can no longer afford a legal system that discards one of the two most important people in a child's life, their parent. As a result of this winner-takes-all system, a quarter of all children whose parents separate or divorce lose all meaningful contact with their non-custodial parent. A further 40 percent see that parent for only a few hours every month. More children currently lose a parent through separation or divorce in New Zealand every 3 months than lost a parent through the entire period of the Second World War.

That is why, earlier this year, I introduced a Shared Parenting Bill to ensure that after separation or divorce, a child had the right to frequent and ongoing contact with both their mother and their father, their grandparents and extended family as well. Everything we know about children teaches us that it is in their best interest to maximise the involvement of both parents in their lives. Children want, love, and need two parents.

Society needs children fully to have their parents. By any measure, children with both parents will usually do better in life than those who have been denied a relationship with one or both. Society picks up the pieces far less often in cases where children and young people have enjoyed the fullest relationship with both their mother and their father.

Shared parenting is based on the notion that when parents separate or divorce, the children deserve, and in fact have the right, to continue their developmental years with two parents. These parents should be equal in their responsibility for the upbringing of their children, unless there is a compelling reason why a parent is not fit. In such a case where children are genuinely at risk, this bill provides for all of the protections and safeguards of our present sole-custody law.

Of course, that is not to say that single parents fail to try their best, but just as two of anything is more than one, two actively-involved parents can provide more physical, emotional, and psychological support than one. Shared parenting now forms the basis of law in the USA, in France, Sweden, and Holland. Both Canada and Australia are looking at shared parenting, and in Britain a single-issue political party, the Equal Parenting Party, has been established. All these countries are finally facing up to the tragic consequences of widespread family breakdown are moving towards shared parenting.

Here in New Zealand we were recently reminded of the need for change by the tragic murder-suicide of Nelson based Rosemary Perkin and her three daughters as a result of a family court decision. It follows the 1995 Bristol deaths of a father who murdered his three children, and a 1997 murder suicide of a mother and her two children. A few weeks ago I spoke to a mother whose son committed suicide earlier this year. She said he was a loving father who cared deeply about his three children, yet during the five years of separation he had been able to see them only four times. She said the hurt was overwhelming and it would not go away. He left a note asking his parents to watch over his children. The family attributes 95% of the reason for his death to the ongoing battles for custody and access.

Well I say - enough is enough. In a civilised society in the 21st century we should not be condoning laws that cause such damage, hurt and bitterness.

Thirty years ago in the United States, murder-suicides of parents and their children repeatedly made the headlines. When they understood that the negative consequences of sole custody were responsible for the tragedies, legislators acted. They devised a change that took the conflict out of family law, and ensured that a child had the right to the love and ongoing support of both their mother and their father, grandparents and extended family as well. Shared Parenting was the fastest spreading family law change ever to sweep through the United States.

Family law as it currently stands has also been responsible for significantly damaging the social fabric of New Zealand. Who can seriously believe that that is the best we can do as a society? New Zealand is already one of the industrialised world's leaders in sole parent families. We also lead in youth suicide.

We cannot ignore the consequences of a system that awards custody to one parent as a matter of course, denying children their fundamental birthright to have the ongoing support of both their parents. We cannot ignore that we currently have the most under-fathered generation in the history of the Western World.

If present trends continue, by the year 2010 half of European and three-quarters of Maori infants under 12 months' old will live in families where there are no fathers. As a consequence of this lack, such children will be vulnerable and at risk of poor outcomes in life from the day of their birth.

The Rt Hon. Sir Michael Hardie Boys, Governor-General of New Zealand, recently stated: “Fatherless families are more likely to give rise to the risk of being abused, of being emotionally, even physically scarred, of dropping out of school, of becoming pregnant, of living on the streets, of being hooked on alcohol or drugs, of being caught up in gangs, in crime, of being unemployable, of having no ambition, no vision, no hope, at risk of handing down hopelessness to the next generation, at risk of suicide.''

Laurie O'Reilly, the late Commissioner for Children, shared the Governor-General’s passion for children to retain contact with their fathers as a protector, supervisor, a good role model for their sons, and a male relationship model for their daughters. He believed that our current focus on sole custody alienates fathers after separation or divorce. He wanted to see New Zealand looking towards the type of shared parenting laws that we see increasingly overseas, laws that keep children in full emotional, physical, and spiritual contact with their fathers as well as their mothers.

Even the judiciary shares concerns that their attempts to solve problems in Family Courts over the last 30 years have created widespread problems in Youth Courts and the criminal justice system. They want Parliament to re-examine what is in the best interests of children. They are concerned that their historical judgement that stability for a child is one parent and one home, may now be out of date.

In countries where stability means frequent and ongoing contact with both parents, children are doing better. Shared parenting plans ensure arrangements are tailor-made to suit individual children. When my Shared Parenting Bill was before Parliament, we had support from the Commissioner for Children, Parentline, Grey Power, rural groups, women's groups, men's groups, and members of the legal profession, the judiciary, the Salvation Army, churches and charities, and psychologists, counsellors, mediators, academics, and literally thousands of New Zealand families. My office was and still is inundated with tragic stories from people whose lives have been shattered by our present custodial laws. Many have been ruined spiritually as well as financially.

Family breakdown cuts across race, class and creed. It affects virtually all New Zealanders, either directly or through family, friends and colleagues. It affects all of society. Sadly for the hundreds of thousands of parents locked in conflict, grandparents alienated from their grandchildren, and children caught up in a viscous crossfire between the two people they love most in the world, the government did not support shared parenting, voting my Bill down, refusing to let it go to a Select Committee.

But Shared Parenting is an idea whose time has come, and a father from Dunedin, Tim Hawkins, paid the $500 to launch a petition to call for a Citizens Initiated Referendum into Shared Parenting. I have pledged my support for Tim’s petition, seeking to gather the 250,000 signatures we need to facilitate a referendum. Strong families are the foundation of vibrant communities and a go ahead nation. Over the years social legislation has undermined that state and now it is time to rebuild. Introducing shared parenting would be a start, but more needs to be done. Presently I have another Private Member’s Bill in front of Parliament that arose as a result of my work on shared parenting – one to open up the Family Court.

While still protecting the identity of individuals Family Court decisions should be required to stand the test of scrutiny by the media and the public, unless a judge deems otherwise on a case by case basis. In jurisdictions that have a presumption of openness in their family courts, false and vexatious allegations were seen to decline, judgements appeared fairer and people had a far better idea of what the legal process involved. In fact, mediation was seen in many cases to be the answer, and there was a significant increase in out of court settlements. Each of these law changes – shared parenting, justice in the Family Court - is a small step towards reforming an area of law that desperately needs it. … and I haven’t even touched on the criminal justice system.

If we reflect, we will recognise that there are many other areas that desperately need reform – social welfare, the whole treaty settlement process, the Resource Management Act, the increase in red tape and bureaucracy that is now such a burden on small business, and the list goes on and on.

But we need to start somewhere and if you can support Shared parenting then you will be helping create better outcomes for children for families and for the country.

ENDS

For more information visit ACT online at http://www.act.org.nz or contact the ACT Parliamentary Office at act@parliament.govt.nz.

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