‘Fix the Family Court’
They are the depressed, faceless parents who feel as if their children have died. Lost in a Family Court system that doesn’t have the ability to act quickly, their situation has been made worse by the pandemic.
It was a note that should have sent a chill through Family Court judges and the lawyers who represent separated parents.
The note encompassed *Sam’s last thoughts, and the sense of hopelessness he felt about a system that enabled children to become estranged from a parent.
‘‘Fix the Family Court,’’ Sam wrote.
Increasingly overwhelmed by a court system that could suspend access to his 4-year-old son without any evidence that it was required, Sam died by suicide, in his Auckland sleep-out, some time in the first two days of June 2019.
A talented apprentice builder, the 25-year-old adored his son but had been put through years of protracted court processes due to the nature of Without Notice Applications (WNA) and lengthy delays.
Under such an application a parent can apply for an urgent court order that suspends previous custody arrangements in an emergency situation. It is an important tool when abuse of a child is alleged.
But it’s the time taken to deal with the notices if the alleged abuse is unfounded that is costing innocent parents time with their children and can lead to intractable estrangement.
When Sam’s son was six months old, his former partner made a similar application, claiming he physically hurt his son.
For three months Sam had to live without seeing his son, until an investigation cleared him of the allegations.
While he held no animosity towards the mother, who had mistakenly believed minor injuries were signs of abuse, instead of a playing accident with the child’s aunty, it took a huge toll, both on his relationship with his son, and financially, as he tried to navigate the Family Court process.
Just over three years later, and after many custody debates, Sam found himself on the end of another WNA for domestic abuse of his son.
Instantly, he was suspended from seeing him every weekend, in what had become part of Sam’s and his extended family’s life. Completely lost without that family time, he couldn’t understand what was happening.
Just eight days before, Oranga Tamariki (OT) had notified him that his son had told a kindergarten supervisor that his father hit and swore at him. Sam did not know why his son had said what he did and was blindsided by the investigation.
However, 10 days later, OT advised Sam that the allegation of abuse was not substantiated, and contact arrangements could resume.
A day later Sam’s ex-partner and her lawyer filed a WNA, meaning he could not see his son until a Family Court hearing took place.
Already in $20,000 credit card debt to deal with ongoing legal fees, Sam’s mental health was deteriorating. He began to switch off.
He couldn’t see a way out and didn’t know, but feared, what the extended estrangement would do to his son.
Three weeks later, Sam would take his own life.
Sam’s parents can’t understand why his expartner’s lawyer did not do due diligence before filing the application. If she had done so, she would have discovered that OT’s investigation had cleared Sam of the allegations a day before the interim variation custody order was filed.
‘‘I am still livid about the lawyer and her approach and the fact that she did not do her duty,’’ his father, Terry, says.
Initially he tried to suppress his anger, but now he and Sam’s family want to push for change in the Family Court system to ensure the same tragedy does not happen again.
‘‘Nothing will bring Sam back,’’ his mum, Amy, says of her choice to speak out. ‘‘But other parents going through this will know they are not alone.’’
Sister Talia stressed that Sam made it clear the situation wasn’t his ex-partner’s fault, but rather a product of the Family Court system.
‘‘She utilised the system that was put in place for her,’’ Talia said.
Like a death
Sam’s story is familiar to other parents who feel New Zealand’s Family Court system sometimes protects and encourages some parents to actively pursue orders that could cause intractable estrangement between a child and a parent.
While there are some deliberate cases where custodial parents restrict a child’s access to a parent, it’s important to note that the Family Court plays a vital role in protecting children from a violent or abusive parent.
It can be a fine line understanding if a child genuinely doesn’t want to be with a parent because they have experienced harm, or if there is a parent using the system for their own emotional means.
In some cases, an abusive parent has claimed their children’s reluctance to see them was due to the other parent deliberately turning the children against them, a practice dubbed parental alienation.
While it’s not disputed that it’s necessary to protect a child should there be an allegation made against a parent, lengthy and costly court-hearing delays can further estrange a rejected parent if the allegation is found to be false.
Take *Lilly and *Jono’s situation, with a history of 13 years in and out of the Family Court to try to keep Jono’s now 14-year-old daughter, Carrie, in their family.
Initially Carrie was in a 50/50 custody arrangement between her parents and seemed to be happy with the arrangement. But very quickly, Carrie’s mother began to file WNAs, claiming her daughter had been abused at the hands of stepmother Lilly.
When Carrie was 7, and again when she was 9, the mother was forced to withdraw abuse allegations against Lilly after Carrie unequivocally denied it had happened.
By the time Carrie was 11, her mother began her eighth application to return full custody to her. This time she cited the same allegations against Lilly that she had claimed previously, with a letter written by Carrie to back it up.
Lilly and Jono were devastated, and have now not seen Carrie for three years as they continue to wait for a court hearing. They believe Carrie was coerced by her mother to write the allegations and think a child psychologist would have helped to prove that.
Legal expenses and child support have now left the couple $350,000 out of pocket, and they have no idea if they’ll ever be able to reforge their relationship with Carrie.
After three years apart from Carrie, with zero communication, the couple have agreed that the next court hearing will be their last. Jono feels the system and the time it takes for a hearing to take place is forcing him to walk away from his daughter permanently.
For Lilly, claims that Jono has effectively abandoned his daughter are simply not true.
‘‘He jumped over barrier after barrier until he can’t jump any more and people say he walked away? No, he didn’t walk away. He was pushed out of her life.’’
The process has broken Jono, and Lilly fears what would have happened if he had not had strong family support and the couple’s three children.
‘‘If it hasn’t happened to you, you cannot understand the severity of it.’’
Effectively the couple believe they have lost a child, but the grief is ambiguous because Carrie is still here. On top of that they suffer the pain that Carrie’s rejection brings.
‘‘It’s like a death. No, she’s not dead, but she’s completely lost to us.’’
Lilly feels it all could have been prevented if the Family Court had intervened sooner and ordered a psychological evaluation of Carrie.
Meanwhile the couple’s grief continues, as does that of the extended family, who have also been excluded from Carrie’s life.
And then there are the concerns about the impact on Carrie, with a grandparent telling the couple that their daughter was now deeply troubled and shut herself in her bedroom every day. She had also experienced suicidal thoughts and was depressed and anxious.
The most difficult cases to deal with
For 30 years former Family Court judge Dale Clarkson has dealt with what the profession then termed ‘‘intractable access cases’’ – when contact with a non-custodial parent couldn’t be accomplished. Today the cases are termed ‘‘resist and refuse’’.
Clarkson believes these types of cases have become longer and more complex. They were always understood to be among the hardest to deal with. The relationships and long-term implications that were at stake ensured she always spent extra time thoroughly assessing cases at the beginning, believing it would help speed the process up.
‘‘Spending a bit more time at the front end saved enormous time for the court in the long run and more importantly stems the pain the parents and a child are going through.’’
Having one judge dealing with a family right through the system was important, and it was crucial that complex cases were dealt with as quickly as possible, to limit the amount of time a child might be separated from a parent, she says.
‘‘I don’t know that everyone is aware of just how crucial it is to manage these cases and push them through.’’
Clarkson has seen both genders cause issues, saying one of the hardest cases she dealt with was a difficult father who was undermining the mother’s custodial relationship with their child.
‘‘And I didn’t have any leverage because he wasn’t the custodial parent . . . It was almost impossible to deal with.’’
Using psychologists early in the process can help a parent who feels wounded from a separation, and stop them using a child as a means of emotional survival. It can also help a judge make decisions, she says.
Empathetic to those parents caught up in a financial nightmare from Family Court costs, Clarkson believes a new legal aid category might help for the most complex intractable cases.
‘‘It’s horrendous – legal aid has been so restrictive in recent years, and it has exacerbated the whole thing.’’
Clarkson and her husband, Hugh, have previously researched the subject of parental alienation and presented two papers on the issue. In one of them they choose to use the term ‘‘post-separation parental rejection’’ in order to shift the debate from being about a parent’s behaviour to the problem of a child’s rejection of a parent.
It also connects the rejection of the parent to the parents’ separation.
The couple found that in a situation where the child’s rejection of the parent is out of proportion to the perceived failings of that parent, the causes and solutions to the issue are complicated.
They suggest that where the rejected parent has not been abusive, and where the relationship was good before the separation, the child’s relationship with the aligned parent must be examined.
However, New Zealand has only a small number of child psychologists, Clarkson says, and they are often booked up for months ahead. Getting to the heart of the issue can be problematic.
In a handful of extreme cases where an aligned parent has been proven to be deliberately harming a child’s relationship with the rejected parent, Clarkson has reversed custody arrangements.
While it sometimes seemed punitive and harsh on children, Clarkson found that it had been relatively successful once therapy and mediation changed.
‘‘It was the only thing that changed the dynamic.’’
Zayne Jouma deals with alienated parents in their darkest moments and believes the problems are escalating because of the slowness of the Family Court.
As a founder of Family Dispute Support Services, Jouma knows most parents who have been estranged from their children end up abandoning them altogether.
‘‘They find it is an easier fix than dealing with the Family Court process but find living with the grief and loss of a child is the hardest to deal with.’’
As a father who went through the same issue with his daughter, Jouma went down a ‘‘very dark pathway’’ before he got a resolution, describing it as the worst experience he’s had in his life.
Suicide, self-harm and job loss are the all-too-frequent results of Family Court processes, according to Jouma.
Recently, a father waiting for a Family Court hearing after a WNA suspended his ability to see his son, saying he had received a warning from his employer because he could no longer focus at work.
The father expected to lose his job because he couldn’t stop thinking about his child every moment of the day, or how he was going to pay for a lawyer.
Many parents Jouma deals with are financially broke, unable to fund a lawyer, and the majority have no comprehension of the court process or how they can help their case.
Jouma puts the blame squarely on the Family Court, because the court system is adversarial, in that a judge must decide on a winner and a loser.
‘‘It doesn’t work that both parents win.’’
Add delays into the system, with some parents seeking advice from Jouma after three years of supervised contact, and the risk of permanent estrangement to a rejected parent increases.
Not just a New Zealand issue
It was a seminal moment in Britain’s House of Commons.
‘‘I speak as an objective onlooker moved by stories of injustice, hopelessness and deep sorrow,’’ an MP who would later become the attorney-general proclaimed.
It was 2017 when Suella Braverman denounced Family Courts for the role they were playing in estranging parents from children.
Braverman was concerned at the inability of courts to make a defaulting parent comply with a child arrangement order.
‘‘The courts are slow to respond and reluctant to penalise, sending the damaging messages that court orders are optional, not mandatory, that the relationship with the nonresident parent is meaningless, rather than crucial.’’
In the worst cases, a noncustodial parent could be denied contact with their child for several years, she went on to say.
‘‘If they do not have a spare £10,000 to spend on legal fees, they are essentially erased out of their child’s life with no remedy whatsoever.’’
Braverman’s rallying cry acknowledged the festering sore that had been clogging the British Court system – and fuelled the rising number of parents whose relationships with children had been completely severed.
Three years later a survey by Good Egg Safety, and shared via Facebook, asked about parental estrangement.
More than 1500 UK residents who had been impacted by estrangement shared their experiences; 56% male and 43% female.
Of those who responded, 40% said they had not had face-to-face time with their children for more than a year and 11% said they had not spent any direct time with their child in more than five years.
Also, 80% reported they had suffered an adverse health impact, while 16% said they felt suicidal.
More than half of the respondents said they had also been impacted financially through repeated court processes.
One English father summed up his experience as eight years of struggle, 29 court hearings and more than £150,000 in fees.
A father in Northern Ireland said he nearly took his own life. ‘‘My wife came and stopped me. I was severely depressed, I can’t believe what I was thinking. I have two younger kids with my wife, and it would have ruined their lives too.’’
The study reported that children who have been unfairly estranged from one of their parents after separation could suffer long-term effects and concluded that early intervention was essential to ensure children were quickly reunited with the rejected parent – something that was rarely addressed under the UK’s current system.
Rehabilitation gives hope to estranged parents
According to an American study in 2019, a quarter of children of separated or divorced parents experienced moderate to severe estrangement from one of them – the equivalent of about 3.8 million children across the country.
The impact on those children has been likened to a form of child abuse, with another American study in 2019 showing the longterm consequences include anxiety, depression, post-traumatic stress disorder symptoms, emotional dysregulation, identity development disruption, substance abuse and poor peer and romantic relationships.
Externally behaviours such as ADHD, oppositional defiance disorder, and negative academic and occupational impacts were also observed.
An international authority and consultant to parents and attorneys on divorce and a child’s rejection of a parent, Dr Richard A Warshak, has written a book on the issue, Divorce Poison: How to Protect Your Family from Bad-mouthing and Brainwashing, and helped found a programme to help parents reunite with their estranged children.
This North American programme, called Family Bridges, is currently used in six countries, including Australia, and Dale Clarkson believes it could be effective here.
Developed in 1991, it was first used to assist in reuniting recovered missing children with their parents but was quickly extended to non-abducted children who were unreasonably estranged from a parent during the divorce process.
Often severely estranged children will arrive at the workshop anxious, angry, confused and reluctant to spend any time with the estranged parent. By the end, about three-quarters of the children participating have successfully reconnected with the parent.
The workshop aims include facilitating, repairing and strengthening children’s ability to maintain healthy relationships with both parents, as well as strengthening their critical thinking and helping them maintain balanced views and a more realistic perspective of both parents.
Its success has seen the American Family Court system use it as a tool to help the most severe cases of estrangement.
But for those parents unable to use the workshop, Warshak gives hope. Hang in there, he says. Patience pays off. ‘‘One of the major takeaways from the Family Bridge workshop is that the situation is not hopeless.’’
‘‘It’s like a death.
No, she’s not dead, but she’s completely lost to us.’’ *Lilly