Vivienne Crawshaw: Broken homes echo with Yuletide blues

The Christmas season brings with it many expectations, not least of which is the notion of happy families.

For some separated families Christmas seems deliberately designed to cause stress and remind them of their not so happy status.

It had not been Gavin's choice to separate from his wife, a successful publisher. They had two children, Sam aged 13 and Ruby aged 9.

When Renata announced her departure he was horrified. Although he had suffered from long-standing depression and was generally unhappy with his lot he had expected that Renata and he would see each other into their old age.

When Renata took up with her best friend's ex-husband shortly afterwards, Gavin became convinced the departure was long-planned and that Renata had been having an affair during the marriage.

His resentment intensified.

Gavin had been made redundant some months before the separation and was available to care for the children after school. He insisted on looking after the children during the week time and made it so difficult for Renata to argue about this that she reluctantly accepted the care arrangements on his terms.

She saw the children every weekend and took them out for dinner on Wednesday nights as well as taking them to sports practice during the week.

But Gavin took any chance at change-overs to let her know in bitter terms how she had ruined his and the children's lives.

When her son, Sam, told Renata in August that he was enrolled at the local boys' high school, Renata was quietly furious. She had wanted him to go to the equally local but more liberal co-educational school down the road.

She contacted Gavin who told her that, as he was now the children's primary caregiver, it was little business of hers, and that Sam was very keen to go.

When she tried to talk about the issue gently with Sam he refused to engage, telling her to just drop it.

Renata was concerned, as previously Sam had indicated to her that he had wanted to go to the co-educational school which many of his friends from intermediate would be attending.

But she decided not to push the issue for fear of placing further pressure on their already stressed son.

The Christmas season magnified the family's difficulties. Gavin had grudgingly accepted that the children would spend Christmas afternoon with Renata but there was no such accord about the holidays.

Renata planned a holiday in Gisborne to catch up with family there.

Her parents lived near the beach and in the past the family holidays with the children had been spent there. She wanted to go for two weeks after Boxing Day and take the children with her. With limited leave available this was the only time she could go.

Before talking to the children Renata approached Gavin, to avoid last-minute arguments.

Gavin said that he had planned to take the children tramping in the first week after Christmas and had already told them about it. They were looking forward to the tramp, he said, and suggested she have her holiday in Gisborne on her own.

Possibly the children could join her for the last few days once they were back from the tramp.

He added that he had been reading up on attachment theory in his spare time and did not think it was good for the children to spend as long as two weeks apart from him in any event.

When she came off the phone Renata blew a gasket. A supportive colleague told her she thought Gavin's attitude was off the wall.

"After all, he's unemployed; he's got the kids with him every week. Surely to goodness you're entitled to a couple of weeks' holiday with them. He's bonkers."

Strengthened by this support Renata approached a family lawyer.

When the lawyer's letters to Gavin suggesting a sensible resolution of the holiday issue got nowhere, the lawyer filed an urgent Family Court application to define Renata's access to the children over the Christmas break and one for shared custody of the children.

Gavin decided to represent himself and filed an affidavit disclosing that he had discussed the issue with the children at length and that they would rather go camping with him, since they felt abandoned after their mother left them.

Renata's affidavit contained suggestions for Gavin's holiday time with the children, noting she was seeking only two of the six to seven weeks they were on holiday.

An affidavit by Renata's boss confirmed her limited leave.

The court heard the Christmas holiday issue on the basis of submissions only and convened the hearing before Christmas. It decided that it was in the children's interests to spend holiday time with both parents.

The court ordered that they were to spend two weeks with their mother, noting that as Gavin was unemployed he had the remainder of the holidays to spend with the children and so they would be able to enjoy quality time with him also.

The judge noted with concern that Gavin appeared to have over-involved the children in the dispute and decided to appoint counsel for the children to inquire generally into care issues and report to the court in the New Year with recommendations on how to advance matters for the children.

* Vivienne Crawshaw is an Auckland family lawyer. She can be contacted on vivienne@gubbandpartners.co.nz