Family Court is 'no man's land'

Jim Bagnall, in judge's garb, outside the Rotorua courthouse. Picture / Tracey Scott

Jim Bagnall says the end justifies the means. "They are starting to listen now because we're making it personal. I abhor that, but they wouldn't listen to us before, not a word."

A few moments later he clarifies what he's said - part of him abhors what he's doing but part of him doesn't. Watching him in full flight with a megaphone, he appears to relish stirring or, as he puts it, "championing fathers everywhere".

The former Auckland West Union of Fathers organiser is telling the Weekend Herald why men's groups have upped the ante in their protests about perceived injustices in the Family Court.*

Bagnall's group and others around the country, a loose "coalition of fathers" have begun rolling demonstrations - the next protests will be tomorrow - outside the homes of Family Court judges, lawyers and court-appointed psychologists.

But though their actions have given the groups publicity and widespread media coverage for their cause, there have also been negative responses.

"Your members came across as thugs and bullyboys intimidating the women who dared to stand up to them," says a posting to Hands On Equal Parent, one of the group's websites. And a letter to the Herald on Sunday asks: "Why are these men estranged from their families? Could it be their public actions reflect their private behaviour?"

There is discontent within the father's groups, too, with some questioning whether harassing people in their homes is going too far. And whether bad press is in fact better than no press.

On May 20 at its annual general meeting the Union of Fathers passed a resolution that none of its members would be involved in protests that take place outside residential dwellings or name specific people. Bagnall has not renewed his membership and has been asked to remove Union of Fathers signage from his bus.

"Protests need to be focused on the system and not individuals," says Union of Fathers president Fraser Penny.

Bagnall has experienced the animosity firsthand. He's been assaulted three times in the course of his demonstrations - once with an egg, "once with a hand from a woman who screamed, 'This is my home'," and on another occasion with a paint-gun which splattered his bus.

"These people, when their buttons are pressed, are just as violent and stupid as us," he proclaims. That's probably not quite what he meant to say. But the idea of men behaving badly in order to provoke others to do the same seems to sum up the strategy.

Bagnall who frequently assists men as a McKenzie friend of the court, says he gives hope to men who have nowhere else to turn. "What I've done in the past seven years is hold people in check from doing very stupid things, and I can guarantee that's true."

He says that when men see themselves as victims they tend to revert to instinct. "A victim of the system is the worst kind of victim. You get a lot of choices taken away so you become more fundamental. And you can see I'm fundamental and I have biases ... "


Judith Surgenor is one of the lawyers targeted by Bagnall and his cohorts, apparently on the say-so of one the group's members who has a protection order against him preventing contact with his ex and his children.

Surgenor, who had already been subject to abuse on the Masculinist Evolution New Zealand (Menz) website, was expecting a visit. So when protesters turned up in her street last month with megaphones and a van playing very loud music she wasn't overly surprised. "They put pamphlets into letterboxes and were yelling things like I'm a liar and I've misled the court, that I have taken people's children off them and ruined families, and to go and get another job - that sort of stuff.

"They were using my name and saying over the megaphone, 'Judith Surgenor is a dishonest person', and so on. I thought, 'Oh that's just charming'."

Surgenor, who has been practising as a Family Court lawyer for 16 years, points out that a relatively small number of cases actually progress to a defended hearing in the court.

There are always two sides to the story and a judge hears both sides, and often independent evidence, before making a decision.

Surgenor says of the protesters targeting her: "They see everything from a very subjective viewpoint. It's totally and utterly based on their own perception of the world. They completely lack insight into what they have done and how it has affected other people.

"They are the sort of people that are so rigid and bitter and wound up in their own perspective on things that they've got to blame somebody when things go wrong for them. So it's the judges and lawyers and ex-partner who cop it."

Surgenor has also been personally threatened.

At one hearing a father's group member was ejected from the Family Court for his threatening behaviour towards her. Surgenor says she is not the sort of person to back down, but is concerned about what effect continued intimidation could have on the working of the court and whether it might make some lawyers more wary of taking a stance.


Bruce Tichbon, who heads Families Apart Require Equality (Fare) and was active in recent protests outside homes in Palmerston North, says lawyers are being targeted because they provide "a very poor quality service".

He describes the Family Court system as "the slack butt-end of the legal profession" and quickly works himself into a lather: "Everybody knows the agenda is preferential maternal sole custody, which means mum will almost invariably get ownership and control of the family and dad will be beggared paying huge amounts of money to support the system, even if dad never sees his kids."

Tichbon, a veteran of 15 years of protesting, is convinced that the court is riddled with gender bias, that there is a deliberate "information vacuum" on gender-based statistics by the court, and that in New Zealand 15,000 children a year are losing their fathers.

In his view, the Family Court is a cog in a much larger system designed to stick it to men.

That system includes Work and Income New Zealand for handing out the domestic purposes benefit, Inland Revenue for collecting child support, and the police - "highly implicated in carting men out of their homes".

He is furious, too, at the amount of "gender equity training" happening in the court - "judges sent on courses where they are lectured by feminists".

(The Weekend Herald checked with the Ministry of Justice and with the Law Society, both of which said there was no such thing.)

By now Tichbon has a full head of steam: "We grow up in a country where men are told from the outset that they are violent, socially inferior delinquents and the mother always gets the children and the vast majority of men are programmed that way ... It's pretty well understood that any woman can have any man thrown out if his home simply by ringing the police.

"We live in a country that's profoundly committed to pro-women affirmative action. The existence of the Ministry of Women's Affairs is proof of that."

Tichbon has some justification to be frustrated.


The Weekend Herald asked the Family Court on May 30 for gender-based statistics about court outcomes - such as the number of fathers compared with mothers who had been granted day-to-day care of children.

We also wanted statistics about the length of contact time granted in parenting orders, how many parents had entered shared parenting arrangements, and gender information about the outcomes of protection orders.

Nothing was provided, with Ministry of Justice spokeswoman Vicki Lindsay saying some of the information would take two months to extract from its case management computer system.

The court's handling of such requests demonstrates an unhelpful attitude. At a time when emotions are running high, justice, more than ever, must be seen to be done.


The protest outside lawyer Stuart Cummings' home began with an element of farce. One of the demonstrators yelled through a megaphone that Cummings was a coward and should come out of his house. He stopped yelling when another demonstrator pointed out that Cummings was actually standing beside him.

"I'm a staunch advocate of the right of protest," Cummings says. "I thought, 'It's a democratic society and these people have at least the basis of a gripe and they're exercising their right to bring attention to that.'

"But when I personally endured it, I started off being frustrated. I was then hurt by the complete callousness with which they would upset my family, and then annoyed by their absolute blatant dishonesty."

Cummings was annoyed, too, because he's relatively sympathetic to some of their concerns and has spoken about Family Court issues at a men's group conference.

He volunteered to meet the protesters and table their concerns, but no one took up his offer. Cummings, like Surgenor, has been targeted on the say-so of a disgruntled father, and defamed on the Menz website - accused of lying to the court.

Cummings points out that if he lied in court he would be struck off. And that such an accusation is not just outrageous, it doesn't make any sense.

As lawyer for a child he has nothing to gain from the outcome.

He says some in the men's groups seem unable to understand that a lawyer's oath is to act without fear or favour in their clients' best interests subject to their obligations as an officer of the court.

"Any person who practises in the court knows the most import thing is for your client to have credibility. That's why the men's groups are doing themselves a disservice. Large amounts of what they say are completely untrue."

Cummings also rejects that there is any gender bias in the court, pointing out that women earn about one third less than men in New Zealand and that many families make the sensible choice to have the father out working and the mother at home.

"I say to men, 'Why are you surprised that the Family Court replicates a similar sort of division of parenting responsibilities after separation, given that the determinant is what is best for children?' What is going to be best for children in the initial stages is a replication of what they're used to."

Cummings says the men's groups do have some legitimate gripes, in particular the inability to get protection orders that are made without notice back before the court quickly.

"A protection order stymies the relationship of the children and their father.

"While it is harmful for children to be exposed to domestic violence and inter-parental conflict, so it is harmful for children to be denied contact with their father."

The problem, he says, is more to do with resources of the court than any flaw in the legal process.

Cummings also points out that it is much harder than it used to be to get a protection order applied without the other party being present to defend it.

He is critical also of the Child Support Act which has no mechanism to recognise direct payments by a parent for a child's welfare.

Child support payments are based on a percentage of the income of the liable parent, rather than need.

Payments don't take into account the income of the recipient parent or shared parenting contributions that are below the 40 per cent of the nights threshold.

"The Child Support Act is like a taxation. It's a disincentive for people to earn money and an incentive to hide income, so it's vulnerable to feeding suspicion and mistrust of the other parent because the money is paid directly to them and there is no control as to where it goes."

But Cummings is concerned that the men's groups protests and their unwillingness to engage in dialogue is making the situation worse.

"Isn't this exactly the sort of behaviour that the women who have got a protection order complain about? It's abusive, harassing, denigrating, dishonest and causing you to fear for your safety."

He's worried, too, what effect protests may have on the court.

"How would you feel as a woman going into a Care of Children Act defended hearing knowing that your lawyer or the lawyer representing your children has been subject to that sort of harassment?"


Stuart Birks hasn't taken part in any protests but he's sympathetic. "I can understand them feeling somewhat upset at the fact that their relationship with their children is just terminated at the wishes of another parent who at that stage doesn't like them and the courts are quite happy to support that."

Birks is the academic of the fathers' movement - an economist and a director of the Centre for Public Policy Evaluation at Massey University and vice-president of the Father and Child Society.

His arguments and research are more considered, but like many in the father's rights movement he has had personal experience of the court - and seethes with contained anger. "My relationship with my children eroded and the court turned a complete blind eye to that."

He says one reason fathers are taking to the street is that much of what happens in the court is so invisible. "You walk out of the court having basically lost a child and the whole world outside is carrying on just as before.

"No one even knows this is going on."

He argues that the court is not supportive of both parents' involvement with their children if the custodial parent is hostile to the other parent.

"We have a situation when someone can unilaterally decide a family relationship is at an end and that effectively terminates one of the parent's parenting relationships also."

Birks argues that it's too easy for mothers to be vindictive when separation occurs and the court system, in facilitating the end of adult relationship, frequently makes it impossible for a relationship between fathers and their children. He describes that as an "extreme action when we really don't have the tools to make right decisions in those situations".

Not everyone agrees.

A posting last year on the Menz website - "The system working as it should" - describes a scenario of a vindictive mother, with the court admonishing the mother for her behaviour and awarding day-to-day care to the father.

Birks, like many in the fathers' groups, blames the court for the outcomes of a relationship breakdown without acknowledging the root cause of, and responsibility for, the disintegration of the relationship. Legislating to control human nature in such circumstances is always going to be difficult.

And while the Family Court may not always get it right, many will be pleased it is there - as a last resort - to help pick up the pieces.

* CORRECTION: This report was updated on June 19, 2006 to clarify that Jim Bagnall is no longer a member of the Auckland West Union of Fathers.