Saturday, 10 August 2013

Enforcing Access Arrangements Why and How?

So, as I have said in previous posts. I retired from Family Court Advocacy work last year. Boxed up my 12 year collection of Family Court papers, research, Judgements and material that covers every aspect of the New Zealand Family Court that is out there.

Only to now have to un-box it all.

In preparing submissions for a case. I keep coming across material I forget I have.

One such document titled' Enforcing Access Arrangements Why and How?' written by Judge Dale Clarkson and the now Judge Maureen Southwick QC.

This paper was from way back in 2003.

So 10 years on from this paper and what has happened? Absolutely nothing.

I read a lot of papers presented by Family Court Lawyers and Judges. And the impression I get is.....Why don't the practice what they preach?

The truth is, they write these papers to make themselves look good- publicly- and then once they get into the Family Court, it's like everything vanishes 'poof' out of their brains.

This paper includes writings and references to parental alienation, United Nations on the rights of the child and the importance of the parent child relationship.

So why the heck don't these two 'Judges' follow there own understanding?

In my Judge Flatley post your going to see me really attack him over the fact he needs to keep himself up to date with current research.

Any member of the public using a service such as the Family Court would have some expectation that the Judge was in fact 'learned'.

If I can find time in my busy schedule to keep up to date with the current research and trends in child development, parent child contact, parent child relationship and everything else associated with the Family Court. Then Lawyers and Judges in the Family Court should also.

Another paper I have and enjoy reading is' Lawyer for child who am I?' by Dugald Matheson.



Matheson refers to the lawyer for child as a 'multiple personality disordered counsel', yes I would agree with that!

Over quarter of century of practice, there has been many a time when I have sat observing my imperfect parent/client sitting in the witness box defending rather timidly, carefully crafted prose housed within my affidavit. I have sat there and prayed that counsel for the other parent does not ask the question that I know will totally destroy my clients credibility as a competent parent worthy of being entrusted with the care of a child. Sometimes my client has been lucky and that other counsel has, for whatever reason, not asked the question that will unlock the murky depths of my clients fragility. I, as counsel for the parent/client, have never seen it as my duty to then, on purpose, in re-examination, put to my client the very sandbagging question that I prayed would not be asked. Why have I not done that? Surely, as an officer of the court, I have has a duty to ensure that the court knows everything so that the best interests of someone who is not my client are promoted? Why Not? Because I am an advocate for my client whose ethical duties are steeped in traditions going back many centuries and encased in rules and in case law that are acceptable not only to the court but also to the community at large. I am doing my job as the lawyer for my client. That is what I am expected to do.

There are two points from this paragraph of his paper.

One, I know ‘that question’ he refers too. 

Two, He is wrong on the aspect of there being a ‘duty’ to the client. There is a ‘duty’ to the courts for a counsel to point out to the 'courts' certain ‘rules’ or points of ‘law’ that do not work in their clients favour. That doesn’t mean they have to do a whole ‘defence’ of their case. But when a contradicting law exists against their clients ‘claim’ there is a ‘duty’ for the counsel to point it out to the courts.

I did not spend all those years sneaking into law lectures and not learn something. I just missed the lectures on how to be a ‘professional liar’.
As an ‘officer of the court’ there is meant to be the concept of truth and justice. Not of ‘lining my pocket’ and ‘avoiding that question’, which is what the ‘officers of the court’ have evolved into over the years. Especially Family Court Lawyers.

In this instance. The Family Court involves children and families. Family Lawyers always do a ‘rant’ about how they are ‘there for the family’. BUT in reality and practical application, they are not there for the families OR the children. They are there in normal terms of their ‘pockets’ and ‘client’.
Is it any wonder more people are self-litigating now days? Lawyers bring their own occupation into ridicule.
He then goes on about 'counsel to assist'. Which is a whole other argument really.
In another ten years, after the new law reforms are implemented (and changed another four times). We will look back on this paper and wonder 'was Matheson on drugs'?

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