The NZ Family Court: A Father's Odyssey
In March 2003, with McKenzie Friend, Alan Candy, I represented myself in the High Court, appealing a Family Court decision made by Her Honour Judge Dale Clarkson which prevented my daughter joining a pre-Christmas family holiday at the beach. In short, my appeal was dismissed and I was ordered to pay costs to the Respondent's lawyer, Ms Catherine Townsend, to cover legal aid's contribution to the appeal. The decision, and award of costs, was indicative of my experience of the New Zealand Family Court which from the start has treated me in a hostile and punitive manner for daring to access its services.
A description of my journey through the NZ Family Court System is necessary to understand why I eventually elected to represent myself. My experience embodies many of the concerns opponents of the Family Court have, and points to why men are choosing to represent themselves in proceedings and engage in public protest against the Court. Furthermore, it shows why many fathers, who have lost faith in the system, are prepared to risk contempt of court proceedings to publicly reveal details of their case to contradict apologists' claim "the Court is working well" .
Firstly, some background information. I have two daughters Lily aged 13 and Iris 11. They have different mothers. Lily was born in Dec 1990 and Iris in March 1993 . Lily was a beautiful baby. At the time of her arrival, I was working as a freelance photographer for New Zealand's leading consumer publications but chose to care for her full-time.
I'm not sure how much influence second wave feminism had on my choice to look after Lily but no doubt the ideal of gender equity played a part in my decision. The fact Lily's mother had a steady and lucrative position as a consultant physician and wanted to return to work were probably more significant factors.
Looking after Lily was a joyous time for me. I had been very excited about her arrival. I found attending her birth a deeply moving experience. Milestones such as her first smile, first steps, first birthday and first words are treasured memories for her mother and I. Lily, was and remains, a delightful person to spend time with. My love for her deepened through the time I spent with her as a baby, and the two of us established a strong emotional bond.
Unfortunately, my relationship with Lily's mother deteriorated over the course of Lily's first year and when she was 15 months of age we separated. We could not, initially, agree on shared care arrangements for Lily and approached the Family Court for assistance to sort them out.
Facing the possibility of litigation, I went to see my brother in law, a senior and respected member of the legal fraternity, and asked his advice. He said, "Mark, you need an advocate who has "the ear of the Court". An upstanding representative respected by judges and colleagues alike. Someone with sensitivity, insight, intelligence and integrity". I replied, "you're the only lawyer I know who fits that description". He paused for a long while then said "perhaps you could give Simon Jefferson a call".
Fortunately, Lily's mother and I avoided Court proceedings and through mediation worked out a suitable care regime for Lily. During this time I got, however, the first indication of my second class parent status, in the eyes of the law. Because I was not living with Lily's mother at the time of Lily's birth I was not recognised as her legal guardian.
I was dismayed to learn even though I was her biological father and had been responsible for her day to day care since she was born I had no legal standing in her life. Fortunately, Lily's mother did not oppose my application to be made a guardian, but what she saw as a concession I felt ought to have been mine as of right.
And then there were two...
Because I was living with Iris's mother when Iris was born in 1993 guardianship was not an issue. After her arrival I was happy to provide the day to day care of both children. I wanted to give Iris the same level of parental attention her sister had received. It made sense for me to look after the children together. I was an experienced parent and both mothers were keen to maintain their careers. Furthermore, I was motivated by a desire to nurture a positive sibling relationship which would, hopefully, endure well into the girls' future and foster their sense of belonging to a large extended family with my many nieces and nephews of similar age.
My relationship with Iris's mother was always rocky. Parenthood didn't draw us closer together. Disturbingly, Iris became a vehicle for her mother to express hostility toward me. For example, when Iris was approximately 6 months of age, without letting me know, she did not come home one weekend. While I was capable of looking after Iris she was being breast-fed at the time. There were numerous examples of passive aggressive behaviour which Iris was getting caught up in.
Female violence destroys second relationship
When Iris's mother's behaviour became violent toward me, I felt I had no choice except to get some distance from the relationship. I took time out to take photographs in the relatively peaceful location of war torn Bosnia. Parallels between the conflict in the former Yugoslavia and my personal life did not escape my attention.
I soon discovered being separated from my children was a painful experience. I was anxious to be with them. After two months, I returned to Auckland.
I remember, vividly, the occasion I saw Iris again. I wondered how she would respond to me. I was delighted when she spontaneously opened her arms and embraced me. It was a real Kodak moment and turning point in our relationship. I felt like she claimed me. I simply fell in love with her.
Upon my return I lived separately from Iris's mother. Looking after the girls in a flatting situation was, however, not ideal so I returned to live in one of the apartments in a large house which Lily's mother owned and lived in. This minimised the disruption to Lily and improved Iris's living situation.
I continued to look after the girls on a daily basis while their mothers worked.
First court contact reduces access
A year later without consulting me, Iris's mother simply held onto Iris to force a reordering of the care arrangements. I learned she had quit her job and wished to obtain the Domestic Purposes Benefit. I refused to agree to her proposal and sought the court's assistance to resolve matters.
Naturally, I asked Simon Jefferson to represent me. An interim care arrangement, which resumed but reduced Iris's access to me, was put in place.
Initially, I did not fear the court. More important than having good representation I believed my record of caring for my daughters from birth would be viewed positively by the court. I assumed the continuity of care arrangements would be maintained. I expected the court would recognise the strength of the bond I had established with my girls, the importance of their sibling relationship and the practical benefits of being cared for together. I imagined the court would frown on the manner in which Iris's mother went about changing the care arrangements.
Simon Jefferson had warned me, however, not to expect validation from the court. Indeed none was forthcoming.
Psychologist claims to be 'father friendly'
The Court appointed Jean McCormick as Counsel for Child and Jan Pryor, a registered psychologist, to assist the court in determining suitable custody arrangements. When I first met Ms Pryor she told me she was one of the more father friendly psychologists. I was glad to hear it but didn't, at the time, understand why she felt a need to give me such an assurance.
I was gob smacked when I read her report. Even though she praised my parenting ability she recommended a 60/40 shared custody arrangement in favour of Iris's mother in order for her to qualify for the Domestic Purposes Benefit (D.P.B.). Counsel for Child supported her recommendations. After considering submissions Judge Clarkson ordered access arrangements in line with the psychologist's recommendations.
How, I wondered, could this outcome be in my child's best interest? How could a change in the care arrangements, separating Iris from me, her sister and extended family be considered a positive step? How would a substantial drop in her mother's income promote Iris's best interests?
I imagined how a Family Court judge would respond to a father who threw in his job after two years because he wanted to care full-time for his child, even though the child's mother was already providing her and her sister with quality care? What sought of reaction could a father expect from a judge if he sought the D.P.B. to fund such a proposal? Where would you find a psychologist prepared to recommend such an arrangement or Counsel for the Child willing to support it? I believe such a scenario just couldn't happen. So how did it happen in my situation?
Domestic Violence "an issue" for Judge
Domestic Violence rather than the best interests of Iris seemed to be more of concern for Judge Clarkson. In the intense emotional climate of our relationship breakdown I had once slapped my ex partners face, with I admit, significant force.
I don't wish to excuse my violent behaviour. However, I believe it was given too much weight in proceedings which should have been focused on the best care arrangements for my daughter. Simon indicated to me during proceedings violence was a real issue for Judge Clarkson. The attention she gave it in her decision suggested this was true.
True that is, regarding the issue of male violence towards women. At no point was there a serious examination of the issue of violence in the relationship as it related to Iris.
At our initial separation Iris's mother repeatedly attempted to assault me. She smashed my camera equipment, and means of making an income, destroyed treasured personal items, threw my clothes out in the rain and vandalised my car. Later on she changed the ownership details of her abandoned vehicle into my name. Because the car had incurred significant fines, I was forced to defend myself against prosecution in the District Court.
Nearer the time of the Family Court hearing she laid, what was by then, an historic complaint with the police about my slapping her face and persuaded her current boyfriend to lay a complaint over my use of obscene language. On the other hand, I was discouraged from detailing in my affidavits any violence toward me or passive aggressive behaviour which affected Iris.
I didn't take issue with Her Honour dealing with my violent behaviour as she saw fit. Her judgement, however, had serious long term implications which I did not fully perceive. Even though I undertook the court ordered anger management course my violent outburst appeared on the Family Court file like a criminal conviction on a job seeker's CV.
On subsequent attempts to review care arrangements Ms Townsend, repeatedly referred to it. Even seeking a review of the custody and access arrangements was presented as psychological violence; a manifestation of power and control issues linked to my earlier expression of physical force. I realised anything I did would be interpreted negatively whereas abusive behaviour by Iris's mother would be minimised and effectively condoned.
Fathers' movement support
I was shocked and frustrated by Judge Clarkson's decision. Simon suggested I get in touch with Men's Centre North Shore - a so called "radical group" of men opposed to the Family Court. I went along to a meeting and was given the opportunity to recount my story and listen to others. I learnt my experience in the Family Court system was far from unique. Men's Centre provided invaluable support for me. Meetings were an important forum to exchange information and to get practical advice on how to make progress in the Family Court system.
In time, I sought a court review of the care arrangements. Very soon after Judge Clarkson's decision Iris's mother returned to work, starting up a retail clothing business. She placed Iris into the care of her grandmother. I was willing to care for her and still of the opinion the new care arrangements did not maximise Iris's opportunities or reflect the importance of her social networks. I hoped the court would accept, as Iris's father I ought to be the best person to look after her when it was clear her mother preferred to work.
After considerable delay, Counsel for Child was reappointed and psychological updates were ordered. Eventually the matter came before Judge Jan Doogue for a ruling. Not only did she reject my application to change the custody arrangements but she put in place a stay of proceedings which barred my access to the Court in the future. A cross application from Iris's mother to review the pre Christmas custody care arrangements was, however, sent back to Judge Clarkson for clarification.
Family holidays at the bach
In her original judgement, Judge Clarkson granted me custody of Iris during the first ten day period of the Christmas holidays. This meant she could join a long established vacation at a bach our family rented in Northland every year. Although I thought Judge Clarkson's ruling was clear, in 1996 Iris's mother, in breach of the orders, held onto Iris preventing her from coming on the holiday. Because the holiday was an important part of our family tradition I sought the court's assistance to ensure Iris could come in future. Judge Kendall's decision confirmed my access during the period in question.
Despite this ruling the so called "vexed issue" of the pre Christmas holiday period went back to Judge Clarkson for further consideration. Judge Clarkson, without the benefit of a hearing, alternated the pre Christmas period between the parents. I again felt frustrated with her honour's decision.
My family had enjoyed our time at the beach with friends and relations since before Lily was born. Because of the bach's popularity we could not change our fixed booking. In light of Judge Clarkson's 60/ 40 custody arrangement, in favour of Iris's mother, protecting a child's participation in an annual holiday seemed a small consideration. My attempt to restore Iris's lost access resulted, however, in a further loss of time together.
I felt like Oliver from the hit musical of the same name. Punished for daring to ask for more.
Self-represented father gets shared parenting
Sometime later, through my association with Men's Centre North Shore, I learnt of a decision which gave me hope of lifting the stay and getting a proper review of custody arrangements. The judgement [W v C (2000) NZFLR ] involved a prominent member of the so called Father's Rights movement in Tauranga. I learned the applicant had represented himself in the proceedings. Put simply, Judge Ingles looked favourably on a father's claim to share the parenting of his son. This ruling opened the way for the review I sought but I didn't know how lucky I was. Mr Jefferson recently informed me this judgement has since been thoroughly discredited-the subject of scathing High Court criticism.
After clearing significant legal hurdles, lengthy delays and vigorous opposition from the respondent, the stay was eventually, but temporarily, lifted by Judge O'Donovan.
Eventually the matter came before Judge McCormick. Although he didn't alter care arrangements significantly, I was allowed to pick Iris up from school on a Friday afternoon for alternate weekend access. I was delighted after five and half years to have an uninterrupted weekend with my girls. His honour also recommended, but did not order, Iris be allowed to participate in the pre Christmas holiday.
While I was grateful he restored some of the access I had lost, I would argue the care arrangements still did not reflect the best interests of my daughter. For example, I have engaged my children in a number of after school activities including dancing, piano, music, gymnastics and football. For Iris this unfortunately means a heavy schedule on the Monday and Tuesday, the days she is in my care.
Judge McCormick questioned my facilitation of extra activities and asked whether I was putting my daughter under too much pressure, raising the all too familiar spectre of abusive male power and control. Ms Townsend even raised in court my association with the Men's Centre North Shore to show how controlling I was and to discredit my character and testimony.
I would still like to have had the after school care of my children to ensure their participation in extra social activities.
Lost confidence in Court
With regard to the beach holiday, after 5 years I lost confidence in the Court. In 2001, Iris clearly wanted to come on the vacation so, I took her. Breaking a court order was not something I did lightly. For a very long time I accepted the Court's authority regarding custody and access, but this was clearly getting me, and Iris nowhere. This was the only time I disregarded the orders.
In retaliation, Iris's mother also breached the orders and held onto Iris preventing me from seeing her on Christmas Day and, late the following year, made an application to reverse the access arrangement to stop her from once again participating in the holiday.
Naively, I thought the application was bound to fail. It didn't seem to meet the criteria necessary to justify the removal of the stay on proceedings. Because the applicant had a year make her claim, I did not think a judge would be persuaded the matter deserved urgent attention. A late application seemed to be a calculated abuse of the Family Court system judges are reputed to find intolerable. Because the applicant had breached the orders herself I imagined a judge would be unsympathetic to hearing the application. Finally, Iris's unequivocal desire to be included in the holiday, contained in affidavit evidence before the Court, surely meant the application would be declined.
Despite the apparent procedural obstacles Judge Clarkson decided to hear the matter. In fact, she seemed eager to deal with it. Before a formal hearing, she made what appeared to be prejudicial comments to the effect 'I shouldn't be able to get away with a breach of orders'. I was grateful my lawyer noted down her Honour's comments and was subsequently prepared to put her recollections into an affidavit supporting my appeal, one of the grounds being Judicial Pre determination. Judge Clarkson rejected arguments against admitting the application, discounted evidence detailing Iris's desire to go on the holiday and reversed her order.
Appeal to the High Court
I was stunned by her Honour's ruling and after some consideration made an application to stay her judgement. This necessitated, I was advised, an appeal to the High Court. Because predetermination was one of the grounds of the appeal Judge Clarkson removed herself from hearing the Stay application. The matter came before Judge Flemming. She declined my application. The matter was, should I wish to pursue it, to be heard in the High Court. Unsurprisingly, a fixture could not be found before the planned holiday. The matter was set down for April 2003.
At this point you might be thinking, this is a storm in a teacup. So a kid misses out on a holiday at the beach- big deal. Maybe Judge Clarkson got it wrong- surely even Judges can have off days? However, many people would agree with me that a family's annual holiday is a treasured part of New Zealand culture. The question which I think needs to be addressed is why would a judge go out of her way to prevent a child enjoying a week at the beach?
In my opinion, Judge Doogue's stay was designed to prevent just the kind of frivolous application Judge Clarkson permitted. Affidavit evidence detailing my daughter's wish to join the holiday ought to have halted the application but counted for little.
Her Honour did not think it appropriate to engage expert assistance to ascertain the wishes of Iris who was clearly of an age to let her feelings be known. Nor was Counsel for Child reappointed to advise the court. From my perspective, established Family Court practice, domestic legislation and International Conventions designed to promote the best interests of the child could not stop Judge Clarkson from dealing with a minor breach of orders by a father.
Unfortunately, the only way Judge Clarkson could punish me involved punishing Iris.
I appealed her decision because I believed a disturbing pattern had emerged in her judgements. I suggest her Honour repeatedly and inappropriately used a reduction in access to punish me. On the three occasions my file crossed her desk Iris's contact with me, her sister, extended family and friends was reduced. Although Iris's legally aided mother repeatedly challenged the pre Christmas holiday arrangement, when the matter came back before her I suspect Judge Clarkson concluded I was the difficult party in an ongoing dispute.
Her judgements, as far as I could see, bore no relation to my daughter's best interests which she is bound by statute to promote. I would further argue they impacted negatively on my daughter. Preventing her from joining a holiday was simply the last straw.
Ran out of money
I spent $ 5000.00 responding to the Family Court application and attempting to stay Judge Clarkson's judgement. If I pursued the appeal with the assistance of Mr Jefferson I was facing another bill of $5000.00 and possibly an award of costs. This was an amount I could not afford. I strongly believed, however, Judge Clarkson's ruling and conduct should not go unchallenged.
I decided to represent myself. I did not hold out much hope for the appeal. The vagueness of legislation governing the Family Court and the acceptance of idiosyncratic behaviour of Family Court Judges, makes it is difficult, if not impossible, to prove claims they have breached their statutory obligations.
Shocked by High Court Judge
My experience as a self represented litigant in the High Court was salutary. Frankly, I was deeply shocked by the behaviour of His Honour Colin Nicholson. I believe he was inappropriately hostile to me as a self represented litigant. Even before hearing submissions, he labelled me a "Crusader" and said he was not prepared to criticise the decision of his colleague. He clearly intended to issue his judgement and dismiss the appeal without hearing my arguments. Only after vigorous protestation did he accept my carefully prepared written submissions and reserve his decision.
His behaviour, in my opinion, echoed the judicial predetermination I believe I had experienced in the Family Court. I contend his comments, attitude and behaviour trampled on my fundamental right to receive a fair hearing. I expected him to keep his thoughts about me, or my purpose, to himself, at least until he considered my submissions. His judgement and an award of costs against me, was, however, entirely consistent with the unsympathetic and punitive treatment I have experienced in the Family Court for daring to seek its assistance.
Ordered to pay Counsel for Child
I was ordered to pay Ms Townsend the amount she had received from legal aid for her appeal work. Presumably, his Honour wanted to send the signal he wasn't going to tolerate the abuse of public funds on such a trivial matter.
I suggest most New Zealand tax payers would feel a publicly funded campaign, over six years, to deny a child a week at the beach ought to be of greater concern to guardians of the public interest. Iris's participation in a holiday had been considered by 5 Family Court Judges and 1 High Court Judge. The upsetting irony of this Kafkaesque situation is Iris's mother didn't object to Iris's participation in the holiday when she was a toddler. She was delighted to get a week away from child care responsibilities.
I found Judge Nicholson's decision on costs confusing. Why was I ordered to pay Ms Townsend the amount she had been paid by legal aid? Why wasn't I asked to reimburse the Legal Services Board directly? In Ms Townsend's submission it was clear she was claiming costs for work carried out in earlier Family Court proceedings. When I pointed this out to the court Ms Townsend acknowledged her error and resubmitted copies of invoices sent to the Legal Services Board detailing her expenses, approximately $1200.00.
Legal Aid mystery
I was still confused. Iris's mother explicitly stated she was not prepared to engage in the appeal process. I had been informed legal aid had to be applied for in advance and could not be applied for retrospectively. If the respondent had no interest in the proceedings surely she would not have even bothered paying the $50.00 application fee for legal aid. How could Ms Townsend, who told two High Court judges her appearances were simply "a courtesy" to the court, present invoices for a client who clearly did not want representation?
I phoned the Legal Services Board to see if they could clarify the situation. The officer in charge of the file was initially forthcoming with information. According to her, Legal Services had not received an application from Ms Townsend to fund an appeal. She assured me that despite earlier Family Court appearances Ms Townsend would have needed to file a separate application for the appeal. The last correspondence with Ms Townsend regarding the dispute was dated January 2003, several months before the appeal hearing in April. Curiously, the last payment to Ms Townsend for her Family Court work matched exactly the dollar amount she was now claiming for the appeal.
Information from Legal Services suddenly dried up. When I called back to obtain more data they told me a request for information had to be made in writing. Although I did this, I'm still waiting for a reply. Despite a lack of written confirmation of what Legal Services had said, I filed a submission pointing out the apparent anomalies.
Ms Townsend, came out fighting. She dismissed any suggestion of impropriety and, in what might be described as, an attack being the best form of defence strategy, brazenly upped her expense claim to $1500.00 seeking extra compensation for the time she had spent responding to my submission. Judge Nicholson accepted Ms Townsend's explanations regarding her invoicing and ordered I pay her the amount she was now claiming. Without the co-operation of Legal Services or necessary means to pursue the matter I let things lie.
The Legal Services Board's failure to provide me with information appeared to confirm the popularly held view among opponents of the Family Court that the system protects those who have a vested interest in it.
So what about the decision to represent myself? With the support of my Mackenzie Friend I believe I made a pretty good attempt of the appeal. Representing myself came only after a long time of playing by the rules of the Family Court system. I felt I needed to exhaust legal avenues before I added my voice to outspoken criticism of the court. Justice Nicholson was perhaps accurate in calling me a "crusader" though I reject his pejorative use of the word.
I wanted to provide an example to other men to represent themselves. Acquiescence to the courts decisions has, for too long, allowed apologists for the system to habitually claim "the court is working well".
Throughout my odyssey in the New Zealand Family Court system I've been treated as a second class parent. Although legislation governing the Courts activities is written in gender neutral language I believe I have been discriminated against, consciously or subconsciously, for being male. Like other fathers I believe application of the Guardianship Act too often automatically links the best interests of the child to the wishes of the Mother. When fathers complain they are simply labelled as 'control freaks' or, 'cardigan wearing, disgruntled dads'.
Family Court supporters in denial
Supporters of the Family Court constantly deny criticisms against it. Claims of gender bias, that the system has been captured by feminist gatekeepers or is unduly influenced by radical feminist ideology and advocacy research are routinely dismissed. Accusations of a closed system which protects vested interests are also brushed off. My own case suggests this is, in fact, an accurate assessment of the New Zealand Family Court system. D.P.B. and legal aid payments appear as state funded endorsements of it.
Apologists for the court remain in denial of the negative impact of it's ongoing removal of fathers from New Zealand families. They continue to ignore the effect of what Stuart Birks calls the "Shadow of the Law", which means that only the most determined fathers proceed all the way through the system. Critics who wish to point out the Court's failings are hamstrung by the threat of contempt proceedings.
More considered discourse from academics like Stuart Birks, Mark Henagan and Dr Felicity Goodyear-Smith, which challenge the ideological foundations on which Family Law is made and the courts operate, ought to be given greater consideration. Experienced Family court practitioners question the appropriateness of a caustic adversarial system to sorting out custody and access disputes.
Even Judge Doogue has recently admitted (in a paper at the 2004 Child & Youth Law Conference [43 KB PDF] ) "Research and experience supports the proposition that in New Zealand some children are being deprived of contact with a parent who has been alleged or judged to be violent when that is not in their best interests."
Protest remains one of the few legitimate outlets of expression for opponents of the Family Court system. While protesters are dismissed and ridiculed by court supporters, quite clearly their activities have gone some way to broadening the debate surrounding the Family Court.
In the future, the Court must expect to deal with a rapidly growing number of fathers who are not prepared to meekly accept the status quo, who will not "play the game" by traditional rules and who will continue to reject discrimination against them simply because they are male.