Mirror mirror on the wall, who’s the fairest Court of all?
TRUE STORY: A former lawyer reflects on her personal experience of New Zealand’s Family Court after she and her children left her abusive ex-husband. This former lawyer expected the same high levels of competency and professionalism in the Family Court as she had experienced and contributed to in the areas of law in which she practiced. Read on to find out what her actual experience was and why she thinks the current planned review of the Family Court is not enough to create a fairer Family Court system.
I finished law school in Aotearoa with a belief in the integrity of the law and Westminster system of government. For the most part I had the privilege of working with legal counsel who were smart, kind, real and committed - the type of people you would leave your kids with.
In one of my roles I led a legal team tasked with advising government officials through the delicate process of implementing government policy while upholding the rights of citizens. I worked with counsel whose work ethics were exemplary and who were mindful of the imbalance of power between the State and its citizens. These counsel understood that above all, they and the State had an overarching responsibility to serve New Zealand’s citizens.
Because of my work as a lawyer, I wasn’t afraid to seek help for myself and my children from the Family Court when I needed to leave my husband for my own and my children’s safety.
As a court dealing with our citizens at their most vulnerable, I imagined The Family Court would be similar to what I already knew. I expected The Family Court would be a place where fundamental legal principles and citizens’ rights would be upheld. I imagined that the safety and care of children would be of paramount importance and that judicial ‘impartiality’ would be observed at all times.
I expected the system would work so that the truth would prevail and my young children (citizens in their own right) would be protected.
But instead, I encountered legal representation that was ignorant, sloppy and incompetent. I changed lawyers (thinking every profession has its bad apples) only to encounter further ignorance, arrogance, ethnocentrism and breaches of legal professional duties.
My ex-husband’s counsel had one directive - to ‘win’ by any means. They seemed to have long forgotten their fundamental legal obligations and possessed no care or comprehension of the impact that their conduct and litigation tactics had on the lives and well being of children.
The lawyer representing my children was no better. Her ignorance was quickly apparent and (by her own admission) she was ill equipped to talk with children - let alone trauma-affected children. Her report lacked authenticity and failed to echo my children’s voices. It was instead the product of her own ignorance, prejudice, and failures in her professional duties to her client.
It was apparent her legal firm had a single formula for children’s care arrangements and they were determined to enforce this whatever the circumstances.
Most adults would have sacked the lawyer for child, but that is not a realistic option for children in the Family Court system. In this system children are voiceless and powerless.
In the courtroom I encountered a Judge who behaved like a schoolyard bully to everyone and it was apparent that counsel were intimidated by him. He made racist and inflammatory comments towards me and was confrontational and manipulative.
I witnessed the Judge’s puzzling reluctance to make decisions as if he were trying to evade his judicial responsibility.
It is the role of counsel to provide all relevant information to the court so that it can make a fully informed and just decision. But this Judge announced he had not even read the evidence. He then applied a safety test from repealed legislation and attempted to squeeze his inadequate analysis into the current legislative framework. Whilst that can be helpful at times in this case, he was purposefully aiming to minimise the abuse so the case could be closed.
It became apparent that the concept ‘interests of the child’ had no real meaning to the judge and the lawyers purporting to give effect to it. Instead, the ‘child’ was not honoured as a real, individual child or actual living young person with equal human rights, but was a detached concept. The process was factory-like.
My children’s ‘interests’ (their feelings, wants and needs) were ignored by their lawyer and misrepresented to the Judge. Their truths were purposefully buried, and their participation engineered to meet a predetermined outcome. They were treated like possessions and their ‘interests’ were viewed through a lens of parental ‘rights’ to the possessions.
The Judge pretended to address safety issues but failed to put adequate measures in place - most likely as he had not bothered to read the evidence.
I have since learned I am just one of many people to experience the horror of the Family Court. My children and I are left exposed to my ex husband’s ongoing abuse. Instead of being treated as citizens with equal human rights who should be protected by the State and its laws; my children and I have been further exposed to more risk and danger. I have faced great hardship to leave the relationship but did so to break the cycle of abuse. Now the Family Court has locked us in to yet more ongoing abuse and rubber stamped it.
Never did I think that this could happen; let alone to someone like me who is legally qualified and therefore seemingly better equipped to navigate the legal system than the average person.
So what can be done to fix New Zealand’s Family Court system so that it shares the same exemplary levels of legal competency and integrity as other areas of the law?
Some argue that we need to raise the calibre of Family Court lawyers; The legal profession already has a long-overdue clean up on its hands. The Minister of Justice, Andrew Little has begun his own review into the Family Court, but as the review is to be done by the legal profession itself, it will be akin to putting a fox in charge of the hen house. The Minister persists with this option despite the UN’s urgent recommendations for a Royal Commission of Inquiry into the Family Court.
Others argue that the gender neutral language of the legislation leads to perverse outcomes because domestic abuse is largely experienced by women and carried out by men.
And then there is the woeful lack of empathy, experience and understanding of domestic abuse from those on the bench. Too often abusers are believed or excused by court officials, while those they abuse are categorised as hysterical, overprotective of their children, and therefore not to be trusted.
These arguments are relevant, but the issues run deeper.
At its core the Family Court system is an arm of government that is essentially beyond any meaningful accountability and transparency to most of its citizens. This shortcoming allows it to make its own rules and to perpetuate its own patriarchal and childist (anti child) ethos through its (mostly) concealed control over the private lives of citizens who seek its help. The awful truth is that rather than helping those who seek its help, the Family Court directly contributes to domestic violence statistics.
It shames me to say it but were it not for my experience, I doubt I would have believed the outrageous accounts of the Family Court I have heard from other citizens. Because of this I urge you to trust the word of your fellow citizens when they talk about the injustices of the Family Court.
The problems are real and run deep, and in my view will not be sufficiently dealt with by the Government’s current review.
The outcome of my case was predetermined to hide the truth of a controlling and abusive (white, well-educated middle class) man. The Family Court refused to look in the mirror and expose the failings and shortcomings of one of its own.
New Zealand’s Family Court is incapable of looking at itself independently and our Minister of Justice Andrew Little will not allow it to be examined by a neutral reviewer who has no connection with or to those in the New Zealand legal system.
An inquiry with statutory independence, such as a Royal Commission, would expose the ways in which the Family Court actively enforces its patriarchal and childist beliefs into the lives of New Zealanders, including those of me and my children.
Despite rhetoric to the contrary, the Family Court is divorced from the real world and has forgotten the privilege bestowed on it to serve our country’s citizens by upholding Parliament’s intent to keep families safe.
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about the backbone collective
New Zealand has the highest rate of women experiencing violence and abuse in the developed world, which is due in part to our broken response system.
The Backbone Collective is an independent body taking action to change New Zealand's dire statistics by examining the response system through the eyes of its users - women who have experienced violence and abuse.
Please join us as either a woman who has experienced violence or abuse, or as a volunteer who wants to help by volunteering your time, services or expertise.
Many reports have been written about where the system is broken but they have fallen on deaf ears. We think that Government and others in a position of power will start listening when hundreds, and potentially thousands, of women speak up about what needs to change.