Dialogue: In custody battles it seems there is bias against men

By WARREN HEAP*

Until recently, it seems, the world of separated fathers was regarded as an ugly twilight zone, one which people outside the man's immediate family preferred to ignore.

The issue, however, is gaining more profile. Parliament's social services select committee has met the Auckland-based Separated Fathers Support Trust, which has petitioned Parliament for changes that would bring our family law more into line with that of the United States.

In most American states, rather than a court custody battle with a clear winner and clear loser, it is expected that custody of children will be shared equally between estranged parents - unless valid reasons exist to the contrary.

When no longer pitted against one another in a winner-take-all struggle for the children, both parties usually act with remarkable maturity and restraint. It leads to creative solutions for shared custody, such as the children living with one parent during the term and spending all their holidays with the other.

The problem in this country hinges on an apparent bias against men. This is shown, for example, by the granting of protection orders against them on the untested word of one party who, in more than 90 per cent of cases, is the woman.

All the complainants need do is swear an affidavit that they or the children have been assaulted, threatened or felt threatened. This system is wide open to abuse because there need be no corroborating evidence, no police investigation or independent witnesses to the allegations for the order to go ahead.

After a relationship break-up, one party sometimes has a vested interest in hurting the other.

And there can also be a financial incentive to gain custody through any means possible, because this gives the custodial parent eligibility to the domestic purposes benefit, while the other must pay a quarter of gross income in child support.

Of course, protection orders can be justified. But stories of unjust orders are widespread. The incident of abuse may be as little as a light smack for discipline of a child, as one Aucklander fighting for access to his children found out this year.

The police refused to arrest him for the incident (which coincided with a separation), pointing out that he had not broken the law. Despite this, the Family Court upheld a protection order.

Our law excludes the public and, therefore, the press from all deliberations of the Family Court. The law also prevents the media from identifying individual cases.

The competence and training of Family Court judges and officers is never scrutinised by the public, yet their power is enormous.

After a protection order, a man loses all contact with his children outside of a two-hour supervised visit. In some cases, a man must pay for the time of the third party - the person observing.

But even this token level of access is granted only if the man first attends an anger-management course. And the outlook from there is not good because the protection order will be uplifted only if the man has the money to fight it in court.

Even if the court allows increased (normal) access, the custodial parent - usually the mother - is still under no binding legal obligation to comply. Fathers can drive hundreds of kilometres to pick up their children for a weekend stay, only to be told at the last moment that there has been a change of plan and they must leave empty-handed.

Since the Family Court and the police seldom enforce an access order, that is usually where the matter rests. Many men in this position spend all their money on fruitless court battles, and some simply walk away.

Many separations and divorces do result in amicable arrangements. Custody is agreed on and reasonable routines for access set in place. But things also often go badly wrong.

There are birthday and Christmas presents which never get through because they are intercepted by an embittered former partner; of men turning up for access only to be assaulted by the new boyfriend; and of men who exhaust their finances, health and mental strength on years of unsuccessful battle to see their children.

There are men who have lost their homes and businesses in their quest to establish or maintain access. Some, in anguish, have committed suicide after being prevented access.

And there are psychological reports stating that children do better, even after a break-up, when contact with their father is maintained.

One MP on the social services committee has suggested that there is so much acrimony in a marriage breakup that no system would be perfect. Tampering would be pointless because it would probably open up as many loopholes as it closed.

The subtext seemed to be "never mind the injustice because it would be just too hard to put right now."

It is all enough to make me wonder if the law as it stands is not somehow impelled by a subtle hatred of men.

* Warren Heap is chairman of the Separated Fathers Support Trust.