Craig C. Jackson
1/27 Kenwyn Terrace
Phone: (04) 389 2291
29 June 2013
Principal Family Court Judge Laurence Ryan
Principal Judges Chambers
P O Box 10-167
Dear Judge Ryan
RE: THE TRUTH ABOUT THE HISTORY OF THE FAMILY COURT: AN OPEN LETTER AND OPINION PIECE
I write to you as a semi-retired registered educational and child psychologist who, from 1978, took a close interest in the establishment of the Family Court.
I made submissions to the then Select Committee as a foundation member of the Father’s lobby group, Families Need Fathers and also helped to establish the Wellington-based Equal Parental Rights Society. On the appointment of the first Principal Family Court Judge Peter Trapski I lobbied for, and was instrumental in, training fellow psychologists as specialist report writers whose expertise lay in child development, maternal and paternal parenting styles and the effects of separation on children. Judge Trapski was committed to implementing the recommendations of the 1978 Royal Commission on the Courts but sadly his tenure lasted for only four years when he stepped down to set up a private mediation service of his own in Tauranga. As you know, Judge Mahoney’s tenure lasted a further 18 years until he too stepped down as a result of a public outcry with media at the time describing his Court as ‘Courts of Injustice’. Your predecessor Judge Boshier in his limited tenure which was to last for only eight years, took various initiatives to try to reduce the involvement of Family Court lawyers with a ‘win-lose’ mentality and an adversarial approach thus setting up one parent to fight the other in often prolonged, expensive custody battles. This made attempts at mediation and conciliation if not the reconciliation of the parties totally impossible, nor their amicable agreement to shared care of their children.
I am therefore very concerned given your reported comments in the media that you see no need to change the present system, a position also adopted by the family law fraternity and the equally powerful female violence-in-the-home lobby groups. Your publicised claims that New Zealand’s family law system is well respected internationally is simply not true, is a falsehood and has seemingly been designed to mislead the public your Courts serve. That distinction rightly belongs instead to the Australian family law system and associated family mediation centres.
The truth of the matter is that over its entire 32 year history the New Zealand Family Court has arguably done irreparable damage not only to fathers but to mothers, grandparents, foster parents and above all, children themselves, has not changed over that time span, and is unlikely to continue to do so for as long as you lobby to maintain the status quo.
When submissions were made by the fathers rights groups to the Select Committee on the Family Courts bill circa 1978/1980 details of six custody and access cases, one involving the actual death of a child in the mother’s custody, were submitted by the Fathers lobby groups to illustrate the pressing need for reform.
It is a measure of the Family Court’s resistance to change that, thirty-two years further on, details of seven cases of gross injustice in the Family Courts assembled by our lobby group, the so-called ‘Payne’ cases were not accepted to be heard by this year’s Select Committee, nor initially, the appalling Adam Cowie case. Because of privacy issues these cases could have been heard in closed session but were not. Press publicity was given to these highly questionable tactics since ‘horror stories’ from female litigants were apparently, by contrast, heard in closed session. It is no exaggeration to describe these as badly botched, biased and mis-handled cases.
In my extensive submissions initially to the Ministry of Justice’s review of the Family Court a year ago and three submissions to the select committee this year, I have argued that the impetus for reform should not be held back by the family law fraternity with vested interests of their own nor by you charged with the responsibility of heading your Court over the next eight years, nor by the equally powerful women’s violence in the home lobby now largely discredited by its campaign of misinformation and distortion of the true dynamics of domestic violence. For the select committee itself to suppress our ‘horror stories’ has also obscured the real and pressing need for reform.
Given on his own admission that Judge Boshier welcomed the review of his Court and had openly admitted that he had failed in his own efforts to carry through his own proposals, why did you not elect as his successor to carry forward his intended changes to your Court realising that it was the family law fraternity itself that had blocked and stymied his initiatives?
And were you even aware of what his intentions were and why were you not prepared as his successor to be more open about your Court’s many defects and shortcomings as he was?
In a 2010 speech to the Hawke’s Bay Family Courts Association on Friday, 13 May 2011, he said just this and I quote:-
“We need to be very careful about judicial involvement in deciding what cases come into the Family Court, which cases proceed and which cases do not.”
“If certain disputes are not to be resolved in the Court, they should be resolved elsewhere…”
“To date Parliament has not favoured forced resolution by any other than a Family Court Judge. Could it be that in a certain class of dispute the view of a mediator should be binding?”
“When we introduced the parent hearings programme pilot five years ago we tried to create a climate of a less adversarial approach. I believe the
initiative but had difficulty whole heartedly supporting it. Some argued that what we were trying to do
was not consistent with natural justice and the rules of the Court.” Family Court
“You will see that from our perspective we welcome this Review of the Family Court because we have tried for some years to bring about reforms ourselves. But we have done so with limited success in the absence of legislative sanction.”
Some two years ago Judge Boshier publicised the fact that in the previous year eighteen litigants, 9 male and 9 female, had committed suicide prompting him to suggest, as reported in the Ministry of Justice’s Review of the Family Court, that decisions affecting the custody of (primary care) and access (contact time) to children should be taken over by a special division of the Ministry of Social Development whose staff would not be legally trained in their ‘win-lose’ mentality but in mediation skills and with expertise in the social sciences. He conceded that only a very small percentage of cases coming before his Court involved any point of law, a point also emphasised in the Review report.
The consumer groups regarded the Review as an enlightened document and an excellent blue-print for reform following the precedents set by the Australian reforms yet currently little reference is made to these reforms by your Bar or by the Select Committee in its recently issued report on the 6th June. Although it could be argued that the reforms have not gone far enough, you have been successful so far, in insisting that lawyers are still involved at an early stage in proceedings to ensure that litigants continue to have ‘access to justice’ and you have lobbied for the status quo to be largely maintained. You have pleaded as reported in a
media article (New Zealand Herald, 10
March 2013), your first publicised pronouncement in taking up your new
position, that litigants should continue to have access to legal representation
since self-representing litigants are only clogging up the system leading to
still further delays. As quoted, ‘They just don’t know how to identify the
issues the Judge wants to know about and then to articulate them’,
precisely the same problem in Australia which actually hastened their reforms
and led to the opening of shop-front, easily accessible Family Mediation
Centres, federally funded in population centres large and small across
Australia. Thus separating couples whom
as you admit are spared the ‘hugely
stressful’ experience of appearing before a Family Court Judge as they have
no idea of the function of the law and don’t know what they are up against and
would choose to stay away from the Courts if they did could now drop into the
centres rather than employing a lawyer.
Your consumers as you say have unrealistic expectations of what Judges
can do, or more to the point cannot do, so why, Sir, does this not lead you to
the logical conclusion that a Court of Law is not the best place to resolve the
complex psychosocial issues that accompany family breakdown given that these
issues may last unresolved for many years?
And how do you reconcile the irreconcilable statement that the ‘warm’
moments you feel when you are dealing with and sorting out people’s problems as
the ‘real law’ when their real
problems do not involve legal issues at all?
And why after 32 years is your Court not better understood and accepted
by the public it serves? Fairfax
Your claim that your Court is one of the most successful models in the world would not be a statement that the many consumers of its services would share given its real history and resistance to change. If your fellow Judges ‘…still want to make this the best Family Court that it could be’, then it has had 32 years to do so but still has not.
With respect, such comments in my opinion are misleading the public, perhaps deliberately so and are unconscionable given your final comments that hopefully ‘…any changes the Government chooses to impose will not make a difference to that system’.
Already such statements have caused a Government back-down on the so-called ‘unsafe’ reforms (as reported in the Weekend Herald, Saturday March 30th, 2013) and that Justice Minister Judith Collins in addressing your concerns is now to permit more involvement by lawyers at an earlier stage in the proceedings than had been intended, including the appointment of Counsel for the Child during mediation. Happily you are supporting the repeal of the so-called
clauses as repugnant to natural justice which indeed they are. But my main concern here is that in allegedly
setting back the momentum for reform as a powerful lobby group of your own and
in trying to influence Government in trying to largely maintain the status quo,
these actions may have compromised the independence of the Family Court bench
and its impartiality, Bristol
Further, given the many examples in our cases of gender bias, prejudice and discrimination in judicial decision-making, can it be claimed that your fellow Family Court Judges are performing their duties in accord with the Bangalore Principles of Judicial Conduct (2002)? It is well established that Judges together with any other citizen are entitled to freedom of expression, belief and opinion, but unlike the ordinary citizen Judges are obliged to protect standards of impartiality and independence (clause 4.6, page 5). And under clause 1.3, page 3, a Judge, and I quote, ‘…should not only be free from inappropriate connections with the Executive and legislative branches of Government but must also appear to a reasonable observer to be free therefrom’. It is debatable and at least questionable therefore, whether or not you have crossed the grey line separating your right to express your opinion that your Court is one of the most successful models in the world and that any changes made by the Executive will not make a difference to that system because the Judges want to make the system ‘the best Family Court it could be’, goes beyond a matter of opinion to a deliberate attempt on specious and misleading grounds to influence the Executive in order to maintain the status quo?
Judge Boshier predicted that after the public release of the Ministry of Justice’s review there would be, as a result, a very specialised open and accountable Family Court, more able to come to resolutions on children’s welfare. He added that unless there was executive commitment to see through the proposed reforms, tinkering at the edges with only incremental reforms would see little real changes to the system in the years ahead.
He referred to the March 2003 Law Commission report on dispute resolution which reflected the widespread criticism of the Court; that it was biased against men, that without notice applications were granted too readily; matters took too long to resolve and that children suffered because of the delays when decisions should be reached expeditiously in accord with the child’s perceptions of their sense of time. Not all Family Court professionals were properly trained and skilled (pages 4/5).
The essential question should therefore be posed:- ten years further on have these problems been successfully addressed and if not, why not?
As evidenced by our ‘horror stories’ some current and still unresolved, the answer is a definite ‘no’ and that is why the future directions of the Court over the next eight years should not continue to be under the leadership of a highly conservative Principal Family Court Judge.
Two recent publicised developments add veracity to my claims which are quite serious and point to a breakdown of respect for the rule of law and of the ongoing loss of public confidence in the Family Court. One is the increase in the international as well as national abduction usually by mothers of children in defiance of court orders and two, the censure of a Christchurch based Family Court Judge by the Judicial Conduct Commissioner concerning her ‘shrill and improper conduct’ towards the litigants and a ‘gross and gratuitous’ discourtesy shown to an expert witness.
In my personal opinion, given that you are continuing to perpetuate a ‘win-lose’, adversarial model of family dispute resolution and have not supported or even mentioned the proposed setting up of a Dispute Resolution Service (F.D.R.), that this should disqualify you from continuing to hold your position of responsibility. As a consequence I urge you to step down.
These views are entirely my own and not of other members of the fathers and families lobby groups. I take full and sole responsibility for them.
Craig C Jackson
Fathers and Family Rights Advocate