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(NZ) Tears never far from the surface in family court case

Posted by watchingcyfswatchnewzealand on February 28, 2007

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The New Zealand Herald
28 January 2006

Tears never far from the surface in family court case
By Chris Barton

The mother can’t finish her sentence, unable to hold back the tears. “The
best solution is [child’s name] remaining … “. Judge David Mather tells
her to take her time. The mother struggles to speak again, but the tears
flow. The judge suggests a break and adjourns the court. Everyone stands.
As he leaves, the court registrar offers a box of tissues to the mother who
takes them outside. The three lawyers, the father, the stepmother and the
social worker sit down. There’s an awkward silence.

Someone breaks the tension joking to the Child, Youth and Family Services
(CYFS) lawyer Sam Anand.

“You’ve only just started Sam and look what you’ve done – you big meanie.”
Everyone knows what is really going on. In the previous hour and a half,
the mother has been under respectful, but relentless cross examination by
the father’s lawyer Diane Ransfield and the strain is beginning to tell.

It’s late afternoon on the second day of a Care of Children Act hearing at
the Waitakere Family Court. Except for a large tapa cloth on the wall
behind the judge’s bench, and further Pacific art on another wall, the
court space is like any other. At the centre the judge’s bench, shielded by
a closed balustrade, imposes authority on a line of lawyers’ desks. On the
judge’s right the witness dock – a lonely fenced-off island. On the left
the court registrar’s desk. When they’re addressing the judge the lawyers
stand, but for most of the time everyone sits on utilitarian tubular steel
framed chairs that make terrible graunching noises at the slightest
movement. Everyone tries to sit still.

Earlier Judge Mather had welcomed me, the first journalist to attend his
court since the new rules came into place allowing media access. He
confirms I’m aware of the rules – no naming of any of the parties involved
– and offers to explain the legal issues and process during some of the
breaks. This case, he says, belongs to the 2 to 3 per cent of the
particularly intractable kind – in this instance over a 10-year period.
Poignantly, on this same day, the child in the middle of it all turns 11.

That morning the father, who is applying for day-to-day care (the new name
for custody) of his daughter, is asked how much money the numerous court
cases over the 10 years have cost him. He estimates $60,000 to $70,000.
“One year it cost $22,000 in lawyer’s fees. I had to sell my home to pay
and was left with nothing to pay the other bills.”

For much of the time during the battle the mother’s lawyer was paid for by
legal aid. But in more recent years when she returned to the workforce she
became ineligible and also faced legal bills. Which may explain why for
this hearing the mother is representing herself without a lawyer. It’s a
role in which the mother shows herself to be quite adept.

Mother: How did you find out [current partner’s name] was made redundant?

Father: From your mother.

Mother: Have you ever questioned me about this or whether we were
considering moving overseas?

Father: No.

Mother: Have you ever seen our house on the market?

Father: No.

Mother: Which member of my family do you believe lives overseas?

Father: [Family member’s name] lives in Singapore.

Mother: Sorry, you’re incorrect there.

Then when cross examining the father’s new partner the mother asks: “When
you made a decision to make a relationship with [father’s name] did you at
any time make contact with me to lessen the conflict between [father’s
name] and myself?’

Stepmother: “No I didn’t think I needed to.”

The parents split up when their child was 10 months. “It [the relationship]
broke up because of the conflict that was happening in front of [child’s
name],” says the father. “I could see it was affecting [child’s name].”
Over the years there have been various shared parenting arrangements, many
court orders, court warrants to enforce court orders and six psychologist’s
reports. Most recently, the child has been made a ward of the court – a
guardianship order which is supervised by CYFS and which involves the child
living out of Auckland with the paternal grandparents. The application for
wardship by the child’s lawyer, Judith Surgenor, arose out of concerns that
the child was suffering emotional abuse. “Almost all of her life all she
has known is her parents fighting. She has said that over and over,”
Surgenor prefaces a question to the mother.

Like all Family Court cases the evidence is pre-compiled in affidavits from
all the parties. Children are kept well away from the proceedings, but the
child’s position is represented by the lawyer for the child. Judge Mather
points out the Act specifically requires the lawyer for the child to take
into account the child’s views and wishes. Occasionally, when there may be
a conflict between the views and the interests of the child, a lawyer “to
assist the court” is appointed to represent the child’s interests.

During the hearing the evidence is interrogated by cross examination of the
witnesses who have sworn the affidavits. Unfortunately, media don’t get to
see the written evidence so have to piece together what’s going on from the
cross examinations. Over the two days witnesses are questioned and
re-questioned from different points of view – by the mother representing
herself, by the lawyers for the father, the child and CYFS, and by the
judge. The result is a rather gruelling, sometimes cathartic, forum where,
as Judge Mather describes it, “every scab is picked”.

The central issue here is what’s called “parental alienating behaviour” in
the mother’s home. It takes a variety of forms: the mother pressuring her
daughter to prefer being with her; the mother being negative about the
father to the daughter; and undue influence of the daughter by
inappropriately involving her in adult issues. Even with the wardship in
place, the mother has continued to try to influence her daughter at her
grandparents’ home via phone calls and by sending text messages and email.

The court-appointed psychologist is concerned that removing the child from
the parents has failed to keep her “emotionally safe”. She says the child
is unhappy and confused.

“The major difficulty for her is to be careful that she does not offend the
mother and [stepfather].” The distress has led to the child becoming
overweight and craving food. The psychologist has concerns too about the
stepfather who has opposed the child’s involvement with her paternal
family. At one stage he took out a trespass notice to prevent the father
from attending the child’s pre-school. In another instance the stepfather
videoed the father when he collected the child from the mother’s home.
“[Stepfather’s name] felt strongly about his role. He would like to have
replaced [father’s name],” says the psychologist.

On another occasion the mother took out a trespass notice preventing the
father from coming on to her property. The result was that the child had to
walk a “no-man’s land” between her mother’s front door and the gate
whenever it was the father’s turn for care. There was also the time the
mother refused permission at the last minute for her daughter to go to
school camp – sending her to school on the day of the camp without any camp
gear. Her father was one of the parent-helpers.

The psychologist recounts some words of the child: “I really worry about
saying the wrong thing and I’m worried and scared when I go back [to the
mother’s].” Another concern is how the child has been taught by the mother
to keep secrets. “It’s telling her [the child] important relationships
require keeping secrets. If you don’t keep them, you’re not worthy of the

Asked about one of the many times she didn’t keep to court orders defining
when the father would have time with the child, the mother replies: “I was
angry and upset about what the future might hold.” Answers to other
questions by the father’s lawyer Dianne Ransfield are also evasive.

Ransfield: Can you now accept that the way you have involved [child’s name]
in these proceedings is inappropriate?

Mother: I was taught to answer children’s questions when they ask them.

Ransfield: Do you accept that in your household you talk about [father’s
name] in negative terms?

Mother: No I do not.

By mid-afternoon on the second day, the case is looking as intractable as
ever. Even the psychologist, when asked on the first day what her
recommendations are, cries out “I don’t know.” She wants to ensure that if
day-to-day care goes to the father, there is a safe way for continued
contact (the new name for access) with the mother – important to ensure the
child doesn’t feel she is to blame.

The paternal grandmother also wants a solution. “I have to say [mother’s
name] could make things a lot easier from what I know.” Asked how by CYFS
lawyer Sam Anand the grandmother gives a list: by being more co-operative,
by sticking to court orders, by not denigrating the father to the child;
and by “generally helping [child’s name] to feel easy about moving between
the two households and not feeling guilty – she doesn’t need to pick sides,
it’s not necessary”.

CYFS has come in for some criticism during the hearing – mainly for
assigning an inexperienced social worker to oversee the wardship and
monitoring of parents’ contact with the child. The department has since
appointed a new social worker who both parents confirm has helped the
situation markedly. Both ask that she be permanently assigned to their case.

When the mother returns to the court composed, but upset, she surprises
everyone by saying: “I want the conflict to discontinue. I do think that
with the monitoring that CYFS provides and with support from a third-party
mediator, it is probably best if [child’s name] lives with her father.”

The CYFS lawyer has no further questions. Judith Surgenor, lawyer for the
child, remarks that based on what the mother has said much of her cross
examination is no longer necessary. The mother’s concession has also made
it redundant for the stepfather’s evidence to be cross examined. But
Surgenor does ask whether the mother understands that “it’s not just
conflict, it’s undermining [child’s name] and bringing her into adult issues”.

At first the mother wants to share fault with the father: “I understand we
both have and it’s been very detrimental.” Surgenor asks more directly.
“Are you going to be able to support [father’s name] in his parenting?”

Mother: “I have to.” Surgenor suggests that discussion about parenting
issues should be “between the two of you, rather than with [stepfather’s
name] as a go-between”. Mother: “Yes it does seem appropriate.”

Surgenor: “You’re not going to walk away from [child’s name] are you?”

Mother: “No.”

In light of the development Judge Mather suggests the parents take some
time to discuss issues – particularly with the lawyer for the child – and
try and come to an agreement on how to proceed. He adjourns the court. “I
try to give the parties and lawyers the opportunity to resolve cases at
every stage prior to when the boom gets lowered,” he tells me in the break,
pointing out that here it’s much better to engage the mother to do things
better than to impose restrictions on her.

An hour later everyone is back in court. The stepfather is asked to join
the session, but refuses. Judith Surgenor tells the judge what’s been
agreed: that the father will have day-to-day care of his daughter and the
mother will have contact – restricted initially to day-time rather than
overnight stays.

The wardship will continue with CYFS as the court’s agent monitoring the
situation. The lawyer for the child who has been involved with the case for
eight years, will provide regular mediation sessions between the parents.
The child and the parents should also have specialist counselling.

“It’s accepted by both parents the conflict between both parents had to
stop,” says Judge Mather as he makes the consent orders. To do otherwise
“would be to continue the emotional abuse of their daughter, and it’s
appropriate to describe the pressure which [child’s name] had been
subjected to in those terms”.

The judge praises the mother for the concessions she has made which have
allowed the resolution to happen, noting how difficult it must have been
for her to do that. His message for both parents: “I accept their
commitment to do things better in the future. I have no doubt they will do

Later in the week, the mother, father and daughter will meet with the
lawyer for the child to explain the new arrangements and work out details.
Tonight the father will briefly tell his daughter her parents have agreed
she’ll be living mainly with him, but still seeing her mum often.

The mother will phone to wish her daughter happy birthday.


The New Zealand Herald
28 January 2006

The kids are not all right
By Chris Barton

For so long closed to public scrutiny, last year the Family Court was
opened to the media. Chris Barton went along to see what happens inside

The lawyer, quoting from a social worker’s affidavit, is asking dad how his
10-year-old son could come to be saying such things. The father replies
he’s not sure – but that his son knew his parents had been to counselling
about their separation and that there was an application before the court.

Kids say the strangest things. Here at the North Shore Family Court the
10-year-old’s quotes have a terrible resonance – marking the beginning of
the end of the father’s application for day-to-day care of his children.

The child’s words indicate the father may have breached a unwritten taboo
of the court – never discuss court proceedings with your children and never
try to pressure them to take sides. As the father is soon to find out, one
parent denigrating the other to their child is not on.

This is a forum – until now conducted in secret – where, inevitably, dirty
washing will be aired and past events will be dredged up, prodded and
scrutinised. Thankfully, children do not attend.

In this case there’s evidence the 10-year-old is adamant he doesn’t want to
live with his mother who has suffered from post-natal depression and was on
Prozac for five years. Another affidavit tells of “the knife incident” when
the mother frightened her son. “Please do not take me back,” the child said
in a letter. But, as the father is also about to discover, wishes are not
always what they seem. And there’s a difference between what children want
and what they need.

Among several changes, the Care of Children Act now allows media to attend
the Family Court so that the public can know more about what goes on behind
its doors. At least that’s the theory. In reality most of the Family Court
proceedings are still shut to media eyes. Journalists can only attend
defended Care of Children Act hearings which happen when all other avenues
– counselling and mediation – have failed. Matrimonial and defacto property
disputes, separation and dissolution orders, care and protection cases,
adoption proceedings, counselling and all other court happenings remain off

The underlying concept of the Care of Children Act is that parents,
assisted by professionals, should work out parenting arrangements for
themselves. In Auckland, the “find a solution” approach appears to be
working. Not only is there a dearth of cases available for the Weekend
Herald to attend, but many of those that are available are adjourned as
parties reach 11th-hour consent agreements.

At the Auckland Court for example Usha Patel, the lawyer representing a
child whose father has died, puts forward a solution to break an impasse.
The mother is refusing to allow her daughter to have any contact with her
father’s Indian family. The child however misses her cousins so Patel
suggests meetings at a supervised contact centre. The lawyers for the
father’s family and the mother agree and Judge Jan Doogue sanctions the
settlement, praising the professionals involved and commenting that the
softly, softly approach is sensitive to the issues of grief and cultural
difference involved.

But at the North Shore court, where a father wants primary care of his
eldest son and two other children, there’s no solution in sight and a
two-day hearing begins. Jurisdictional manager Bruce Archer says the Herald
is the first media organisation to ask to attend a hearing there since the
new Act came into effect in July. He runs through the rules – no naming, or
reporting details that might identify, the children, parents, support
people, speakers on cultural issues or witnesses involved. He also provides
a “Media” sticker to be worn at all times which marks me a pariah. The
lawyer for the children seems friendly, though, and it’s easy to understand
why the parents might not appreciate a media presence. I’m an intruder on
private matters – a paid voyeur of their bickering, blaming and sad,
painful circumstance.

The registrar leads the judge in. Those giving evidence swear on the Bible
or by affirmation to tell the truth. The father sits with his lawyer at the
desk on the judge’s right, the mother with her lawyer to the left. In the
middle is the court-appointed lawyer for the child. Witnesses wait outside
to be called. No one else is allowed to sit in except media, who must be
accredited and sit on the perimeter.

“You talk about mother’s inconsistencies in day-to-day things and your lack
of information about the children. But aren’t these a consequence of the
separation?” asks Judge Ian McHardy of the father. “You see things from a
different perception. Like ships passing in the night, you’re not listening
to each other.” Interjection from the judge is frequent – sometimes to
explain, sometimes as an observation, and often as questions to the witness.

The father is concerned about the mother’s mental state and that the oldest
child in particular seems so afraid – on one occasion turning white and
shaking when he sees his mother, and crying and resisting when taken back
to his mother’s house after a weekend with the father. The father’s family
and friends present evidence about the problem. “She [the mother] thinks if
she has to share love there’s none left for her,” says the paternal
grandmother. “I’ve never seen a well [mother’s name].” But cross
examination by the mother’s lawyer Kathryn Hayman shows most of the
evidence from the father’s family and friends is at least a year old – and
doesn’t take into account professional assessments which don’t find
concerns about the mother’s parenting. Under cross examination by the
children’s lawyer Greg Milicich, the father admits his serious concerns
about the mother’s mental ability are now “niggling doubts”.

The case turns on the evidence of the court-appointed psychologist. The
father is critical of the psychologist’s report saying it didn’t take into
account what happened in his eldest son’s early childhood. He’s critical
too that the psychologist didn’t make it clear what was required when she
visited his home. He had the impression she just wanted to talk to the
children and so kept out of the way, but was dismayed to find the report
criticised him for being passive.

As the cross examination proceeds, it becomes clear the psychologist has
strong views. In her assessment the 10-year-old has picked up on comments
and negativity about his mum and is blaming her for the separation – and
trying to punish her. “What is going on is falling into emotional abuse of
the child by the father.” She says the father remains unwilling to promote
a positive view of the mother to the children. “He [the father] has very
little insight into the part he is playing in this situation.” To break the
cycle – so that all three children “get a clear message mum is not an
unsafe parent” – the psychologist recommends three to four weeks of no
contact with the father, a measure she has never recommended before.
“[Eldest child’s name] needs time to heal his relationship with his mother.”

Milicich, the children’s lawyer, points out that under the new Act, it’s
his role to explain to the children the decision of the court. He notes too
that children have a right of appeal if a decision goes against their
expressed views. “They [the two brothers] cried as recently as last week
that they do not want to live with their mother and that they will run
away.” Milicich wants to know what can be done to assist the children
should the decision be for them to remain in day-to-day care with their

“The people that can help these kids and help the court are mum and dad –
and dad mostly at this point,” replies the psychologist. Earlier Judge
McHardy explained that under the Act the court is obliged to promote
children having a continuing relationship with both parents. He has also
asked the father if he understands the difference between children’s wants
and needs. “Sometimes wishes need to be overridden by the parents.”

The father’s lawyer Natalie Dufty challenges the psychologist’s view that
the father is mainly to blame for the eldest son’s behaviour. She outlines
how the mother described feeling cloudy, useless and that she couldn’t cope
during her post-natal depression. “Is it possible that [child’s name] was
emotionally deprived of his mother’s attention during this time?”

The psychologist says she doesn’t have concerns about attachment. “It’s
possible to be attached to the mother but still hold a sense of rejection
at the same time.” Her main worry is that the eldest son has got into the
habit of speaking in hateful and disrespectful ways about the mother and
that before anything else, that relationship needs to be fixed. “It’s
against nature to hate one parent. It’s not going to help in his mental

Judge McHardy says he cannot ignore the psychologist’s evidence. He reminds
the father that earlier he had said: “Then we’ll know one way or the other”
– in response to whether a temporary cessation of his contact with the
children would help. By now it’s clear the father’s application is not
going to succeed. Judge McHardy puts forward a proposal: the father should
have no contact with the children for the next four weeks; the father
should attend counselling on his own – specifically about the need to
promote the mother’s parenting to the children; arrangements should then be
made for Christmas, with the father to have a several weeks of time with
the children during the holidays; and then, if things go well, a shared
parenting arrangement with the father having the children one day a week
and every second weekend.

Outside the court room the mother and father discuss the proposal with
their lawyers in separate conference spaces. The lawyer for the children
scuttles between the two.

The rights of the child have increased under the new Act so it’s not
surprising that the lawyer for the child plays a key role helping parents
reach consent. In another case at the Auckland court, Lynda Kearns asks
Judge Tony Fitzgerald for time to discuss a report written on behalf of a
child who at one stage was taken into care by Child, Youth and Family
Services (CYFS). In conference rooms outside the court Kearns talks to the
parents separately and then brings them together to agree on day-to-day
care and contact arrangements. An hour later they’re both back before Judge
Fitzgerald who makes the orders agreed upon. He commends both parents for
the “huge progress” made in their personal lives and sorting out the care
and protection issues involved. He says it takes more courage to settle
than to hand over decision making to someone else. “[Child’s name] can’t
have what she wants – the two of you together. But she also wants you happy
and co-operating together. I think she’ll be happy about that.”

Back at the North Shore court agreement is also reached. Milicich will tell
the children about mum and dad’s decision with both parents present. If
there are any problems during the period of no contact with the father, the
boys can call their lawyer. Judge McHardy asks for a memorandum confirming
the arrangements and the court is adjourned. There’s hurt emotion in the
air, but also a sense of relief – a decision by consent rather than by
court order – and a way forward.

Picture: Judge Ian McHardy says the Act promotes children having a
relationship with both parents.

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