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Muriel Newsman’s The Column

Muriel Newsman’s The Column

"Racist, Sexist, Abusive, Biased, Crook and Criminal"

While the Christmas season is a time of joy and hope for many families, others struggle with the aftermath of messy divorces and separations – Christmas presents and cards returned unopened, children denied visits with non-custodial mums, dads and grandparents, police action threatened over un-solicited phone calls to the children … and on and on. Almost no one can dispute that family law in New Zealand is in a real mess, which is why changes presently being recommended by a Select Committee of the Australian Federal Parliament deserve scrutiny.

Last year the Australian Prime Minister, John Howard, took a proactive interest in the plight of children whose parents separate. In particular he expressed concern about the widespread alienation of fathers that can happen after a relationship breakdown, when mothers are given sole custody of the children.

It happens here too, with many dads drifting out of their child’s life. It is not necessarily because the fathers don’t care, but because they either can’t afford the legal fees of prolonged court action, or they find it impossible to sustain a proper parental relationship with a child with one or two hours’ contact time a fortnight

Researchers say both countries are now paying the price for children being brought up without dads as key role models, with boys being more likely to drop out of school and fall into trouble with the police, and girls more likely to seek male affection through early sexual activity … and pregnancy risk.

Mr Howard asked the Select Committee to recommend changes to family law practices to address these issues, in particular whether Australia should be emulating those countries where shared parenting – both mother and father are equally responsible for their children – is the norm rather than maternal sole custody.

The bipartisan committee reported back its findings last week, and while it stopped short of proposing 50:50 shared custody, it does make a number of recommendations that, from the vantage point of New Zealand’s archaic family law practices, look to be worthy of consideration: in particular, a greater emphasis on shared parenting, lawyer-free divorce through a greater use of mediation, the Family Court to be used only as a last resort, and a fairer child support system.

These recommendations look to be going in the right direction - but the devil, as we well know, is in the detail, and claims are already surfacing that the recommendations do little to address the real problems in Australian family law.

One of the most outspoken critics of the Family Court system and those who work within it is the Speaker of the House of Representatives, the Hon Peter Lewis, who has described it as “racist, sexist, abusive, biased, crook and criminal”. He explains: “they are racist because too often they assume Anglo Saxon cultural mores. They are sexist because too often they assume a woman will be a better parent than a man. They are abusive because too often they assume that a man should earn the money and support the children, after the former wife has lied about and vilified him and obstructs his lawful access to children. They are biased because too often they assume children don’t need their father. They are crook because too often they allow perjury without penalty in their processes and actions. “Finally, the Family Court system covers up criminal conduct by allowing too many publicly paid servants in the processes associated with its actions to ignore the public duty of the Court to uphold the law, including its own Orders”.

Mr Lewis could have been describing our New Zealand Family Court system, as most of those caught up in its clutches would testify – if only they could!

It is important to remember that the Australian Family Court is essentially an open court, which means that injustices occur in the public arena. In New Zealand, because the Family Court operates in secret, where comments made risk criminal prosecution for the commentator, many people are completely unaware that any problems exist - unless their family is unfortunate enough to get caught up in it.

The reality is New Zealand’s Family Court system is a disaster zone – it is unfair and unjust, its costs are excessive, the process takes far too long, it fails to uphold court orders, it perpetuates false allegations, it is totally biased against fathers, and in alienating fathers and grandparents, it is very damaging to children.

The Australian Select Committee’s proposals may not go far enough, but in my mind they are worthy of consideration by our Justice Select Committee which is in the process of examining Labour’s Care of Children Bill. As a result, I intend to table their recommendations once the House sits again in February, along with a series of proposals that I believe should be incorporated into the Care of Children Bill, including the following three:

• That the Family Court should be an open court like the Youth Court (using name suppression to protect the identity of individuals) with the Judge holding the discretion to close the court on a case by case basis; • That 50:50 shared parenting should replace sole maternal custody as the starting presumption in custody and access cases (except for parents who are deemed to be unfit) with a built-in clause for ‘bad behaviour’ which would ensure that custody is denied to any parent who attempts to alienate a child from the other parent; • That false allegations – telling lies under Oath in the Family Court – be treated as a criminal offence incurring a charge of criminal defamation.

Finally, it is important to remember that - whether in Australia or New Zealand -separating couples who have the best interests of their children at heart and seek arrangements that put them first, should remain free from state involvement. It is only where such voluntary arrangements are impossible that the state should intervene.

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