Joan Rotherham, of Timaru Lawlink firm Timpany Walton, outlines topical issues concerning the Family Court in New Zealand.
Not all people who use the Family Court are satisfied with its decisions. The main complaints are:
- The Court's hearings should be made public
- It is too difficult for men to get custody of their children
- It is too easy for a woman to get a protection order
- Men who have had protection orders made against them are being made to attend stopping violence courses unnecessarily
- When a man has had a protection order made against him it is difficult for him to get custody of his children
- The Family Court's mediation conferences do not follow the usual mediation methods
People who use the Family Court have the right to have their complaints considered. So it is worth looking at the concerns one by one to see whether any changes should be made to the way in which the Family Court operates.
Should the Court's hearings be made public?
People who appear in the Family Court are already under considerable stress. Making hearings public could discourage them from seeking the Court's help. The breakdown of a relationship should not be a public spectacle. The Family Court is different from the criminal court where offences have been committed against victims and the public has a right to be aware of the outcome of individual cases.
Is it too difficult for men to get custody?
The Family Court is more likely to give women custody. As men are much more involved in bringing up their children today, this can cause dissatisfaction.
However, the children's happiness is the main issue and in most cases the mother is still the primary caregiver and the children develop their strongest bond with her. The Family Court considers these two factors to be the most important ones.
Is it too easy for a woman to get protection orders?
It is easier for a woman to get a protection order than it was before the law was changed in 1995. However, the court still needs to be sure that there has been domestic violence and that the woman needs protection.
The present law gives greater protection from domestic violence than the previous law did. Its goal is to reduce the level of violence in our community.
Men who have grown up in families where domestic violence was considered normal can find it hard to see that their conduct is causing hardship. They usually think that the court should not make protection orders against them.
Should men who have had protection orders made against them be made to attend stopping violence courses?
Stopping violence courses aim to re-educate, not to punish. If a man has learned violent behaviour, he needs to be given the opportunity to "unlearn" it by attending a course. A man who attends a stopping violence course is more likely to enter into non-violent relationships in the future.
After the protection order is made he will usually want access to his children. For the sake of the children he needs to learn how to relate to their mother in a non-abusive way when he picks up the children and returns them.
Is it too hard for parents who have had protection orders made against them to get custody of their children?
There's no doubt that parents who have had protection orders made against them are rarely given custody. This is because a parent who has behaved abusively towards the other parent is unlikely to be the best person to care for the children full-time.
Some parents, who were known to have anger problems but who were still given custody have killed their children.
This caused so much concern in the 1990s that the law was changed in 1996. Family Court judges now have to be satisfied that children will be safe in the care of parents who are given custody.
Should the Family Court's mediation conferences follow the usual mediation methods?
Mediation is usually considered to be a process in which a neutral third party helps two people to resolve their dispute themselves. In the Family Court, judges, who are neutral, chair the mediation conferences.
However, the commonest complaint about mediation conferences is that the judge did not let the parties have their full say, told them what the decision should be, and put moderate pressure on them to reach that decision. As a result many people who take part in mediation conferences consider that their feelings and their concerns have not been taken seriously enough.
Thus, it seems the Family Court could improve its handling of mediation conferences. It is worth considering having the conferences chaired by people who are trained in both mediation and law.
On the whole the Family Court has functioned well since it was set up in 1980. Its emphasis on putting the child first can cause resentment but is appropriate. The Court must be prepared to make hard decisions for the sake of the child and this will sometimes displease one of the parties.
Copyright The Lawlink Group Ltd 2001
Every effort has been made to ensure that this information is accurate. However, it is general introductory information only. It does not constitute legal advice and should not be relied on as such. Specialist legal advice should be sought in particular matters.
Joan Rotherham is an Associate in the Lawlink firm of Timpany Walton. Joan has many years' experience in all aspects of family law, in which she has practised almost exclusively for all her career.
Web site:
Timpany Walton
Email: joan.rotherham@timpanywalton.co.nz
October 2001
Not all people who use the Family Court are satisfied with its decisions. The main complaints are:
- The Court's hearings should be made public
- It is too difficult for men to get custody of their children
- It is too easy for a woman to get a protection order
- Men who have had protection orders made against them are being made to attend stopping violence courses unnecessarily
- When a man has had a protection order made against him it is difficult for him to get custody of his children
- The Family Court's mediation conferences do not follow the usual mediation methods
People who use the Family Court have the right to have their complaints considered. So it is worth looking at the concerns one by one to see whether any changes should be made to the way in which the Family Court operates.
Should the Court's hearings be made public?
People who appear in the Family Court are already under considerable stress. Making hearings public could discourage them from seeking the Court's help. The breakdown of a relationship should not be a public spectacle. The Family Court is different from the criminal court where offences have been committed against victims and the public has a right to be aware of the outcome of individual cases.
Is it too difficult for men to get custody?
The Family Court is more likely to give women custody. As men are much more involved in bringing up their children today, this can cause dissatisfaction.
However, the children's happiness is the main issue and in most cases the mother is still the primary caregiver and the children develop their strongest bond with her. The Family Court considers these two factors to be the most important ones.
Is it too easy for a woman to get protection orders?
It is easier for a woman to get a protection order than it was before the law was changed in 1995. However, the court still needs to be sure that there has been domestic violence and that the woman needs protection.
The present law gives greater protection from domestic violence than the previous law did. Its goal is to reduce the level of violence in our community.
Men who have grown up in families where domestic violence was considered normal can find it hard to see that their conduct is causing hardship. They usually think that the court should not make protection orders against them.
Should men who have had protection orders made against them be made to attend stopping violence courses?
Stopping violence courses aim to re-educate, not to punish. If a man has learned violent behaviour, he needs to be given the opportunity to "unlearn" it by attending a course. A man who attends a stopping violence course is more likely to enter into non-violent relationships in the future.
After the protection order is made he will usually want access to his children. For the sake of the children he needs to learn how to relate to their mother in a non-abusive way when he picks up the children and returns them.
Is it too hard for parents who have had protection orders made against them to get custody of their children?
There's no doubt that parents who have had protection orders made against them are rarely given custody. This is because a parent who has behaved abusively towards the other parent is unlikely to be the best person to care for the children full-time.
Some parents, who were known to have anger problems but who were still given custody have killed their children.
This caused so much concern in the 1990s that the law was changed in 1996. Family Court judges now have to be satisfied that children will be safe in the care of parents who are given custody.
Should the Family Court's mediation conferences follow the usual mediation methods?
Mediation is usually considered to be a process in which a neutral third party helps two people to resolve their dispute themselves. In the Family Court, judges, who are neutral, chair the mediation conferences.
However, the commonest complaint about mediation conferences is that the judge did not let the parties have their full say, told them what the decision should be, and put moderate pressure on them to reach that decision. As a result many people who take part in mediation conferences consider that their feelings and their concerns have not been taken seriously enough.
Thus, it seems the Family Court could improve its handling of mediation conferences. It is worth considering having the conferences chaired by people who are trained in both mediation and law.
On the whole the Family Court has functioned well since it was set up in 1980. Its emphasis on putting the child first can cause resentment but is appropriate. The Court must be prepared to make hard decisions for the sake of the child and this will sometimes displease one of the parties.
Copyright The Lawlink Group Ltd 2001
Every effort has been made to ensure that this information is accurate. However, it is general introductory information only. It does not constitute legal advice and should not be relied on as such. Specialist legal advice should be sought in particular matters.
Joan Rotherham is an Associate in the Lawlink firm of Timpany Walton. Joan has many years' experience in all aspects of family law, in which she has practised almost exclusively for all her career.
Web site:
Timpany Walton
Email: joan.rotherham@timpanywalton.co.nz
October 2001
November, 2001
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