Judge speaks up on Family Court criticisms

Retired Auckland Family Court Judge Graeme MacCormick. Picture / Brett Phibbs

Graeme MacCormick retired as Family Court judge in December after serving 15 years on the bench. Here are his views on men's groups' protests.

Will judges be intimidated by the men's groups' protests?

I do not perceive the judges of the court will be in the least influenced in their decision-making by any protest outside their homes. They have a job to do on behalf of the community. The children whose lives are affected are the children of their birth parents and also children of the community.

What often seems to get overlooked in criticisms of the Family Court is that the originating problems brought to it are not of the court's making. There are frequently power and control issues between the birth parents or between them and subsequent caregivers.

Many in the men's groups vent a lot of anger. What's behind this?

Anger is a natural emotion which shows other people our boundaries. It is precisely where our boundaries lie and the way we deal with our anger that counts. Anger that is not properly dealt with too often leads to physical outbursts and assaults and is, quite frequently, a feature of the more difficult Family Court cases.

Where I think men - as a broad generalisation - find themselves disadvantaged is when women have been the primary caregivers before separation and men have been the primary providers.

When the relationship breaks down and the woman tries to hold on to her role to the substantial exclusion of her former husband or partner, then the father is left with resort to the Family Court, which is not always resourced to be able to respond as quickly as the father - or indeed the court - would like. Nor might the outcome be exactly what either partner wants, depending on the circumstances and the perceived welfare and best interests - and views - of the child or children. Those are the determining factors with the law as it stands.

The protesters want equal parenting as the default position of the court in decisions about the care of children. What's your view of that?
I question whether they are going about that in the right way. They need to convince a majority of members of parliament of the need for a law change and that it will be best for children. Men's groups would need good research to back their position.

In the meantime, the judges of the court will try to apply the law, as it stands. It seems to me there is little point in attacking judges as a body for doing that.

I doubt that you are likely to achieve change by targeting the wrong people. Good, positive time with both birth parents, subject to issues of physical and emotional safety, is clearly the ideal. In an increasing number of cases that is equal time.

But sometimes extreme, ongoing conflict between birth parents, both locked in a battle over their children that they become ever more determined to win, makes this impossible to achieve.

Sometimes children have had so much conflict in their lives, without being able to see an end to it, that very occasionally and as a last resort a choice may need to be made for care by one birth parent to the exclusion of the other, hopefully temporary.

Men's groups say the court grants protection orders against men too easily.

There have also been complaints, on behalf of women, that "without notice" applications for protection orders under the Domestic Violence Act were not being granted readily enough and that too many were being placed "on notice", with significant physical risk to women and children. This demonstrates the difficulty of satisfying everybody. When temporary protection orders are made without notice, in perceived situations of a threat to safety, and when children are involved, the court is increasingly scheduling a review of the temporary order within one or two weeks.

Men's groups also complain about mothers making false testimony to the court.

For "false testimony" one can often substitute "a different perspective or perception". If there is genuinely false testimony before the court and it is not acknowledged or corrected and it is material provided with intent to deceive the court, this can clearly ground a prosecution for perjury. On occasion, the Family Court will refer a matter of perceived perjury to the police for consideration of prosecution. Anything in the nature of deliberately false evidence or misleading testimony will almost inevitably be counter-productive to the position of the person on whose behalf it is provided.

The protesters say they are targeting lawyers because they lie to the court. Why would they make such claims?

This probably refers to the lawyer for the children, with whom dissatisfied litigants of both genders will frequently take issue. Their job is to represent the child or children independently of the parents or caregivers.

Their client is the child. But they are not meant to give evidence to the court - as opposed to making submissions based on the evidence.

It is, however, normal for the lawyer for the child to advise a child's views and the child's instructions, if the child is able to provide them. That may not be exactly what the child has said to his or her parents.

What do you think of the men's groups' tactics?

Men's groups can frequently be helpful in providing a "McKenzie friend" or support person for a father acting on his own behalf. Likewise they fulfil a useful purpose in keeping before the public the importance of birth parents to children.

But Family Court judges are well aware of this and need no reminding. Men's groups need to be carefully focused if they are not to be counter-productive.

I suspect that the protests may, in their targeting, say more about the protesters than about the operation of the court. If their intention is to embarrass, harass or intimidate might not similar traits and tactics have been factors in the breakdown of their marriage or relationship?