Dialogue: Take care in changing custody law

By CATRIONA MACLENNAN

Don't throw the baby out with the bathwater is the main message to the Government as it begins a review of the laws relating to the future of children when parents separate.

Research emerging in countries such as Australia and England, which have reviewed their laws in recent years, indicates that New Zealand should not hasten to follow their examples.

Attorney-General Margaret Wilson and Social Services and Employment Minister Steve Maharey have announced that the 1968 Guardianship Act is to be reviewed.

A discussion paper is to be issued shortly, and the public will be invited to make submissions by November. Mr Maharey said the terms of reference were being drawn up, but issues expected to be considered included the rights of the child, diversity of the family and the terminology used in the law.

The Guardianship Act sets out how the Family Court is to deal with custody, access, guardianship and preventing the removal of children from New Zealand.

It will normally be used when there is disagreement between parents following separation.

The core of the act is section 23, which states that the welfare of the child is to be the paramount consideration.

Although the act is more than 30 years old, important reforms have been made to it since it was first passed. In 1980, the court was given power to appoint lawyers to represent the interests of children in difficult cases.

In 1982 rules for dealing with international child abductions were incorporated, and in 1995 further reforms were implemented to safeguard children caught up in domestic violence.

There is no doubt that the terminology of the Guardianship Act is outdated. It defines custody as the right to possession and care of a child. Guardianship is defined as including the right of control over the upbringing of a child.

These definitions are inappropriate because they focus on the rights of parents rather than of children, and emphasise control rather than children's welfare.

Custody and access have also become outdated expressions, contributing to tension between parents because they imply that one parent has more involvement in the children's life than the other.

Many family lawyers do not use such terms, instead speaking about resolving how much time children will spend with each parent.

However, just because the terms are outdated does not mean that the principles of the act are no longer relevant. Section 23 should be retained. It is crucial that the welfare of children remains the main focus when the Family Court is dealing with disputes between parents.

For that reason, overseas moves towards rigid presumptions about shared parenting - and Act MP Muriel Newman's bill on the same theme - are unfortunate. New Zealand should not follow in the wake of Britain and Australia, which went too far in their mid-1990s law changes.

Research now emerging in both jurisdictions indicates that the new laws have resulted in a playing down of domestic violence, greater numbers of applications and, in some cases, use of proceedings by fathers to harass their former partners.

Obviously the best outcome for children following separation is that they spend large amounts of time with each parent. However, shared parenting requires considerable maturity and cooperation by parents. While it may be desirable in many cases, there should be no legal presumption that it is the best outcome in all cases.

The review should also ensure that section 16B of the Guardianship Act is retained. This was passed into law in 1995 after Sir Ronald Davison's review of the Bristol tragedy in Wanganui, in which Tiffany, Holly and Claudia Bristol were killed by their father.

The unfortunate reality in New Zealand is that domestic violence is a significant problem, and that children are almost always caught up in it. They need to be protected.

Research in Australia in 1997 and 1998 into the impact of the new law there is disturbing in its indication that domestic violence is given less priority, and that contact orders are being made when contact is not in the child's best interests and when it may be unsafe for the child and the resident parent.

If the Government wishes to protect children's interests, providing greater resources to the Family Court would help. Hostile parents will be required to continue dealing with each other for many years. If issues can be dealt with quickly, parents can put disagreements behind them.

They cannot do this if a court case is hanging over them. Although the Family Court is far quicker than other courts, even relatively short waiting periods can result in increased tension.

Finally, an encouraging reality should not be forgotten: most separating parents are mature enough to resolve their children's future without going anywhere near a court, and by simply focusing on what is best for the children.

* Catriona MacLennan is a South Auckland solicitor specialising in family law and domestic violence.