| Issue: | 33,2005 | Page: | 6-8 |
|
Abstract |
Behind the protests in front
of lawyer's private residences |
| Keywords: | Fatherhood, Family Law, Lawyer, Demonstration,
Protests, Family Court |
| Author: |
Mark Stephenson |
A few years ago the actions of the Family Court were the subject of much public scrutiny and angst. Many fathers were angry at their treatment by the court. Several stories appeared in the press. Society demanded changes. The Care of Children Bill was drawn up, one reason being to make the Family Court fairer. Now it has become an Act of Parliament and is the basis of law used in the court.
So has it made any difference, in practice?
Not much, according to Jim Bagnall, of the Union of Fathers. He was one of those men you may have seen on TV 3 recently in a very vocal demonstration staged outside a Family Court lawyer’s home.
What are they so upset about?
Cases like this, as related to Father and Child by Jim Bagnall
One father has been going to the family court for seven years to gain the legal right to parent his child. His ex-partner has repeatedly thrown the ace card: sexual harassment. With her lawyer’s help the father has been accused of abusing his own daughter, in court. This has never been substantiated, he has never been charged, no evidence has been offered. Not surprisingly, he always lost, until recently. The ex-partner took the child (again) to a hospital to have her examined intimately (again) for sexual abuse. No evidence was found.
We can’t know all the details of this case. We do know, however, that the court finally found in favour of the father (and the daughter) and gave him full custody. After seven years.
For Jim Bagnall, there are two problems: the law as it is; and it’s use and abuse by lawyers and other professionals.
The Care of Children Act still allows ‘untested evidence’ in the Family Court. As in the case above, a parent or a lawyer can make an accusation but they do not have to substantiate it, still less prove it. It is hearsay. And yet the judge must hear this ‘evidence’ and he or she is likely to be influenced by it.
What follows from this, Jim feels, is that it allows lawyers, psychologists, or other professionals to impose their own agendas on the case. Their agendas may be: money (one case has continued for 14 years, imagine the fees!), feminism (all men are guilty), or chivalry (women need protecting).
Either way the principal victims are the children who are denied their fathers as the years drag by. Meanwhile 300,000 men are paying child support (IRD statistics).
According to Jim Bagnall, what’s needed is coined in legal language - ‘rebuttable presumption’. The presumption is that equal shared parenting is what’s best for the child. For the court to consider removing a child from either of its parents, the evidence in support of this must be open to argument or proof – i.e., ‘rebuttable’.
How does the law respond to this criticism? Bill Atkin, Professor of Law at Victoria University, says that evidence is heard in the Family Court that would not be admissible in criminal cases. However, ‘admissibility is different from weight’. The court can hear evidence from any source, including the children, but it may not be given any weight in the decision-making process. He points out that evidence rules are relaxed in other courts too, e.g., the Environment Court and all tribunals.
Professor Atkin maintains that the welfare and best interests of the child are the court’s paramount concern. If an allegation of, say, child abuse is made, ‘the court is obliged to consider whether or not it is proved’. Cross examination is allowed and the civil standard (of proof) of the balance of probabilities is used. However, if the accusation is not proved, but not ‘negatived’ either, ‘the court can still take the evidence into account if there is a real risk to the child.’ He admits this is ‘difficult to make a judgement on’ but has to be seen in the light of protecting the child.
One of Jim Bagnall’s complaints is that this can be the basis of ex parte separation orders or custody decisions. It is a discrepancy, perhaps, that evidence about physical or sexual abuse is heard in a civil court, and may be taken into account, though it is a criminal offence.
Is it still possible that some fathers are punished (inadvertently even), by removal of their children, though they have committed no crime?
Another potential problem in certain cases is that of influence. The decisions are made by a judge, not a jury. It is hard to assess the influences on a judge. What ‘weight’ will he or she put on a particular piece of evidence? What assumptions may be brought to bear on a case? With the best will in the world, we are all subject to pressures from society, the press and our own past.
As far as lawyers are concerned, Professor Atkin feels they cannot commit perjury and are subject to professional discipline. Every profession has some bad ones in it, perhaps, but even Jim Bagnall would agree it is only a minority of lawyers who set out to prevent fathers from being treated justly.
The increased use of mediation and appointment of independent counsel for the child in custody disputes do seem to be a step forward, and the Act may have helped with this. Clearly, there are still some problems.
What should a man do when faced with an acrimonious separation and possible loss of his children?
It still seems best to avoid the courtroom if possible. The vast majority of couples work things out on their own or with mediation services. If this isn’t happening, Jim Bagnall’s advice is: use the fathers and men’s groups – they can provide McKenzie friending, mentoring, and recommend lawyers who remain fairly and squarely on the side of children’s rights.
| Father & Child staff writers say what they think about the protests: | Previous Father & Child Family Court
Articles: |
|
 Absent by law (issue 22,
2003) Opinion:
Shared Parenting Bill R.I.P. (issue 11, 2000)Opinion:
Protection Orders and Parental Alienation (issue 10,1999)Also: Special Interest sections 'Family Court' and 'Separation' |