Child's ethnicity and identity paramount in Family Court

"In my experience the single worse thing that parents can offer a child is ongoing conflict," Judge Graeme MacCormick. Picture / Brett Phibbs

The mobile phone rings in the courtroom, startling everyone except the father who casually tells the judge that he's left it on because his new partner is due to go into labour at any moment.

Astonishingly, the father, who is representing himself and has clearly had a long experience of Family Court process, attempts to answer the call.

"Turn," says Judge Graeme MacCormick, "it off." The father reluctantly obliges.

The case is another of the intractable kind - as evidenced by a large cardboard box file on the judge's bench.

The child in the middle of the wrangle - in this instance whether an order preventing his removal from the country should be discharged - is a little over 5.

The Japanese mother argues the order is no longer needed because she intends to stay in New Zealand.

And that having to get the order suspended and then reinstated by consent every time either parent wants to travel is burdensome.

The mother produces evidence of her steady employment here, and an engagement notice to a New Zealander which the father pours over with considerable interest.

The mother points out, too, that she has taken her son to Japan before and always returned to New Zealand when she said she would.

The counsel for the child sees little likelihood of the mother keeping her son overseas.

In his reserved judgement, MacCormick outlines the significant issues: "The applicant naturally considers - and the court concurs - that it is in [child's name] best interests and welfare to be able to travel overseas and in particular to see his mother's wider family in Japan, to obtain a direct appreciation of Japanese culture and to strengthen such knowledge of the Japanese language as he currently has.

"His mother's Japanese ethnicity and identity is a very important part of his own heritage and her anticipated annual, relatively short trips back to Japan should be facilitated as much as possible."

The father is, however, mistrustful of the mother and wants the existing non-removal order to stay in place.

Two factors complicate the case.

The first is that Japan is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.

The convention enables children to be returned to their country of residence to work out parenting disputes.

As MacCormick points out, if the mother remained in Japan the father would face considerable costs seeking the child's return to New Zealand.

The second problem is a recent judgment which takes the view that the court doesn't have the power to vary or suspend an order preventing removal - that without a legislative change it can only discharge orders, meaning a new one would have to be put in place on the child's return.

MacCormick's decision is to discharge the order preventing removal of the child allowing both parents to travel overseas subject to several conditions.

They include providing a full itinerary of where the child will be travelling and contact names and addresses; and that when the child is away he phones the other parent twice a week.

If travel is to Japan, or any country that's not a signatory to the Hague Convention, then the parent travelling has to pay a $10,000 refundable bond to the court.

The child's passports are also to be held by the court and only released when the removal conditions are met.

MacCormick's decision also refers to "the growth of a very substantial and costly Family Court file - costly to the taxpayer as well financially and emotionally costly to the parties".

The end result he says is that [child's name] remains in the middle of conflict between his parents.

"In my experience the single worse thing that parents can offer a child is ongoing conflict.

No child enjoys conflict, particularly between their birth parents.

While they can thrive on challenge, conflict is different from challenge and prevents them from developing in a normal, open and relaxed way."

He advises both parents to concentrate on their own parenting and not to always to be looking sideways to find fault with the other.

And that when there is a glitch in parenting arrangements "to endeavour to take two steps forward for the step backward that has occurred, for [child's name's ] sake".

Sadly the evidence from the file shows both parents have not been able to do this.

"It is time they learned to do so without further resort to the Family Court, which again is simply an indication of ongoing conflict - harmful to their son while they indulge in power, control and recrimination issues and matters of unnecessary debate."

As an incentive for the parents to do better he suggests that each party (rather than the taxpayer) should meet half the costs of the lawyer appointed to represent the child.

His judgment directs the counsel for the child to advise of his costs and for the parents to prepare affidavits of their financial means, and for the matter to be determined by a judge in chambers.